How to Appeal Planning Refusal - NEW

Planning specialist Christian Leigh explains the process

Any long-held dreams for a self-build home, extension or conversion can’t happen if you fail to get that all-important planning permission from the council. We all hope this will come without any problem – and quickly. But what happens if the local authority refuses permission, or just fails to make a decision on your application? You might feel disappointed, indignant, frustrated or even angry.

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This isn’t the end of the road. You don’t have to meekly accept the council’s decision. There is a right of appeal to the government. This allows the case to be looked at independently, and a new decision can overturn a refusal.

What are planning appeals?

Think of a planning appeal as the case effectively starting again. The appeal is handled by the Planning Inspectorate, which is a government agency. The entire case file is passed to them and your development proposal is examined from the very beginning.

And, with most appeals, everyone with an interest in the case – you, the council, your neighbours – can write in again to express an opinion on why planning permission should be granted or refused. So you have the chance to explain exactly why the council was wrong, and why permission should be granted.

The appeal is determined by an independent planning inspector. They are experienced professionals who have no connection with your council. Nor do they live in the area.

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Inspectors read the submissions from everyone, look at the plans, review the case, then visit your site.

They balance all this evidence and come to a new legally binding decision that the council and you must accept.

Most appeals run through the written representations route, which means the case is assessed just from written submissions. There are also hearings and inquiries for more complex appeals which offer the opportunity to put your views in person to the inspector.

You have the option about which route to take when lodging the appeal, although the Planning Inspectorate has the final say on the choice.

Think before appealing

The appeal system is widely respected as being independent, impartial and fair. Negative feelings following a planning permission refusal can lead to a knee-jerk reaction to go to appeal. But before you embark on this process, take time to weigh up if it is the best course of action.

A major consideration is the delay an appeal will involve as even the simplest householder appeal is likely to take several months. During that time you might be able to negotiate with the council about a revised scheme.

Another reason for deliberation is the prospect that you may lose your appeal and that decision is binding on all future applications. This means that a negative appeal decision might hinder future discussions for the site.

It is important to know that an appeal is not the forum for discussing alternative schemes.

The appeal just looks at the particular development rejected by the council. Therefore, it may be better to discuss with the council how a scheme could be modified to meet their requirements – this could be quicker and more certain than an appeal.

So you are going to appeal…

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If you decide an appeal is right for you, the process is simpler than you may think. But there are strict procedures: timetables to be followed, documents that can (and cannot) be submitted, particular information that is expected to accompany an appeal, legislation that must be taken into account, and the possibility of having to pay the council’s costs if procedure is not followed properly.

So what are the key points to think about if your planning application has hit the buffers?

Pay attention to deadlines

The Planning Inspectorate runs to strict timetables and, unlike the case often with local authorities handling planning applications, those dates are rarely changed.

The first date to be aware of is the deadline for lodging the appeal.

The deadline for lodging an appeal is counted from the date given on the formal decision notice from the council and is 12 weeks for householder applications and six months for most other applications. If your council has not made any decision on your planning application then you have six months from the date when they should have determined that application to lodge your appeal (called a ‘non-determination’ appeal).

Once an appeal is lodged and registered the Planning Inspectorate will set out the rest of the timetable, and the dates you have to meet to make any further submissions. Make sure you keep to these – anything submitted late is likely to be returned to you, and there is a risk that your appeal will not be valid.

Give yourself time

Like council planning applications, the appeal system thrives on form filling and numerous documents. And it is important to remember that the Planning Inspectorate is looking at the case from the very beginning – they have no prior knowledge of your project or the site – so you need to explain the scheme fully. This means that if you want to provide a good case then you need to spend time on it. Given the strict timetable in an appeal, do not leave that till the last few days before the appeal deadline.

Lodging the appeal involves submitting a lot of supporting documents, including a vital Appeal Statement.

The Appeal Statement

When you lodge an appeal you are required to send an Appeal Statement that sets out your grounds for appeal. In written representation appeals, this is the only chance to make your case.

So what should you include?

First, read the council’s decision notice carefully. That sets out the reasons why permission was refused. Respond to each of the points raised – if you don’t, you are not putting a good case.

Second, read the objections from neighbours and any consultees and respond to them. Even if their objections were not upheld by the council – they didn’t appear as a reason for refusal – the inspector will still take them into account.

Third, make sure your statement refers to the relevant planning policies in the council’s Development Plan and any supplementary planning documents. All planning appeals must be determined against these. And also see if there are policies or guidance that support your case – the council is unlikely to have referred to these.

Finally, concentrate on the main issues. Avoid long descriptions of the area and what happened during the course of the application unless particularly relevant. The inspector will be visiting the site, and they are rarely interested in any complaints you may have about how the council treated you.

Planning conditions

Most planning permissions are granted subject to conditions. The appeal process involves a discussion of these, and the council will usually submit suggested conditions in the event the appeal is allowed. You can also suggest conditions with your case. Is there an aspect of the scheme that could be controlled or mitigated with, say, a condition about glazing on a window? Or access to a site? Or landscaping the site?

Offering a condition with an appeal may help the inspector conclude that there are ways to allow the appeal.

Some applications require the signing of a legal agreement, or planning obligation. The Planning Inspectorate is very strict with these. It requires an executed and certified copy within a certain time period; this varies, but is always before the inspector’s formal decision.

An appeal cannot be made subject to a planning obligation being made – a common misunderstanding with many who lodge an appeal. So if your scheme requires a planning obligation, seek advice from your solicitor to ensure you have it resolved in good time.

Costs

Unlike a planning application there is no fee for making a planning appeal. This means that there is no cost if you undertake the appeal yourself.

However, there is an exception to this: if one side behaves unreasonably. ‘Unreasonable behaviour’ is broadly set out by the government, but in general it means – as far as you are concerned – meeting the Planning Inspectorate’s timetables, being truthful in submissions, and not pursuing appeals with obviously no hope of success.

Provided you follow the rules, there is little chance of having costs awarded against you. The costs regime also means, of course, that the council might be similarly liable to a claim. For example, if they don’t meet deadlines, withhold information or refuse planning permission on grounds they cannot justify. If they behave unreasonably then you can ask they pay your costs.

Top tips for making a planning appeal

planning-approved.jpgMore than 20,000 appeals are lodged every year across the country, which is around 40% of the number of refused applications, so it is an important part of the planning system. If you think this is the way to progress your project, then remember:

• Think first before appealing

Appeals take many months, so could there be a negotiated compromise with your council instead?

• Don’t try to modify the scheme through the appeal

The process is not set up to look at alternatives.

• Pay attention to deadlines

The Planning Inspectorate is strict with these.

• Spend time in preparing your case at appeal

Your Appeal Statement is the main document to submit – make sure you properly respond to the reasons why planning permission was refused.

• Think about planning conditions

And if you need a legal agreement, then get that resolved in plenty of time.

• Follow all the guidance from the Planning Inspectorate

So you are not at risk of paying costs.

 

planning-author-CL.jpgChristian Leigh is the author of How To Appeal Against a Refusal of Planning Permission, a step-by-step guide through the process of lodging an appeal. (RRP: £21.99) Available from town-planning-know-how.co.uk

This Beginners Guide appeared in the August 2020 issue of SelfBuild & Design magazine

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