A brief guide to planning appeals. If you require more detailed guidance you should consider taking independent advice from a surveyor or town and country planner.
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Preliminaries for an appeal
A right to make an appeal on a planning application arises in one of three ways.
- when an application for planning permission is refused by the county council as the local planning authority, or
- when no decision has been made on such an application within 8 weeks after it has been registered by the county council (and the applicant has not agreed to an extension of time for a decision to be made) or
- when an applicant is unhappy regarding a condition(s) which has been imposed on a certificate of decision.
The appeal process is separate from the issue of maladministration. If the council has failed to handle the process correctly then a complaint can be made. The council has a complaints procedure. Complaints can also be made to the ombudsman who will investigate whether the correct procedures have been followed.
The ombudsman can be contacted at:
Local Government Ombudsman for Wales
Where the council have refused planning permission, they are required by law to give reasons for their decision. At an appeal they must substantiate each and every reason they have given.
This is done by calling or presenting evidence to the Planning Inspector which proves the reasons they have given.
Appellants will try to call or present evidence to show that the proposal is acceptable in terms of planning policy and other material planning considerations. This will also be the case where the appellant is appealing because the Council have failed to decide the application within the relevant time.
Costs implications can arise on certain appeals where the Council fail to justify their reasons for refusal or appellants appeal on unreasonable grounds. Special rules exist for making and deciding costs applications.
In law all appeals are made to the National Assembly for Wales. The Assembly will appoint a Planning Inspector to decide the appeal.
In certain cases, usually involving large or significant proposals, the Assembly will reserve the right to decide the appeal itself. However in most cases the Assembly delegates the decision on the appeal to the appointed Planning Inspector.
The Planning Inspector will usually have the right to decide the appeal. He/She can allow the appeal and grant planning permission subject to such conditions as are appropriate. Alternatively he/she can dismiss the appeal and refuse to grant planning permission.
A similar appeals system exists for appeals against planning enforcement notices and refusals (or non-determination of) certificates of lawfulness.
Planning Inspectors will be professional people from various disciplines who have had experience of working in town and country planning. They will range from lawyers, to engineers to architects, surveyors and planners from both the public and private sectors.
The Planning Inspector will produce a decision letter setting out both his decision and the reasons for it. If any application has been made for costs, a separate letter will be written.
There is a legal right to challenge a Planning Inspector’s decision in the High Court. However the grounds for making a challenge are very restricted; the Planning Inspector must either have made a mistake in law or a mistake in the procedure followed in dealing with the appeal.
In any event the Court will not re-consider the decision itself and substitute its own view for that of the Planning Inspector. If the Court finds the decision was wrong, it will quash the decision and send the matter back to the Assembly for them to consider how to decide the appeal again.
In most forms of planning appeal there is an opportunity to ask for costs against the other main party to the appeal.
Asking for and awarding costs at a planning appeal is subject to government guidance which is set-out in Welsh Office Circular 29/93.
Costs usually only relate to the two main parties at a planning appeal. These are the appellant and the county council (as the local planning authority).
Any application for costs must be made before the close of the planning appeal and will be decided upon by the planning inspector who deals with the appeal.
The usual rule in civil court litigation (that the loser pays the winner’s costs) does not apply to planning appeals. Usually in planning appeals the main parties are expected to pay their own costs. The circular states that applications for costs are made in only about 30% of all planning appeals.
Awarding costs is separate from deciding the planning appeal and will be in a separate letter. The fact that costs are requested or awarded will not have a bearing on the decision in the planning appeal.
The circular makes it clear that costs in planning appeals are only to be awarded where there has been unreasonable behaviour by one of the parties and that this has led the other party to incur unnecessary costs.
The circular gives details of what type of behaviour can be regarded as being unreasonable. The circular gives the following examples of unreasonable behaviour on the part of appellants:
- failing to comply with the procedural rules governing the appeal
- failing to pursue the appeal or attend at the appeal
- introducing new grounds of appeal or new issues late in the appeal
- late withdrawal of an appeal or grounds for an appeal where there are no changes in circumstance
- pursuing an appeal which obviously had no reasonable chance of success
The circular gives the following as examples of unreasonable behaviour by a council which could lead to an award of costs against them:
- failing to comply with the procedural rules governing the appeal
- failing to provide evidence to justify each reason for refusal
- failing to take account of any relevant policy or legal rules
- failure to ask for further information of the appellant before refusing the application
- failure to approve a scheme which an earlier appeal indicated would be acceptable (and there have been no changes in circumstance)
- introduce new reasons for refusal at a late stage in the appeal or abandoning a reason for refusal late in the appeal
- imposing a condition on a permission which was unreasonable, unjustified, unnecessary, irrelevant or unenforceable
- to request an unreasonable planning obligation (i.e. section 106 agreement)
- failure to renew an existing or recently lapsed planning permission without good reason
- to unreasonably refuse to grant permission for reserved matters where an outline permission has been granted
Where the planning inspector believes that there has been unreasonable behaviour he will identify it in his costs letter and will decide whether such behaviour has led the other party to incur unnecessary costs. If both parts of the test are met, the planning inspector may award costs.
An award of costs made by a planning inspector will be treated as a judgment of the High Court and enforced as such.
The party ordered to pay costs will receive details of the costs claimed from the other party and will be expected to make an offer. If the parties are unable to agree on a sum to be paid, the party with the benefit of the costs order can apply to the court to have the costs assessed. Once assessed, the costs are enforceable against the paying party as if it were a judgment of the High Court.
To start the appeal process, the applicant must first complete a number of forms and return them to the Planning Inspectorate’s office.
You can get the forms by contacting the Planning Inspectorate’s office in Cardiff.
In Wales it is not possible for objectors to appeal against a decision, for example, to appeal against a decision to allow planning permission on neighbouring property. However if an applicant appeals the system does allow the third parties to make their views known to the Inspector.
The appeal form will give the appellant a choice of the means for dealing with the appeal. There are three methods.
Involves the appellant and the Council submitting written statements to the Planning Inspector nominated to determine the appeal. The Planning Inspector will consider the submitted statements and make a site visit to the appeal site. He/She will then make their decision on the appeal. This is the commonest method of appeal.
Both appellant and the Council will submit written statements to the Planning Inspector. The Planning Inspector will also hold an informal hearing at which the appellant, the Council and any interested third party (who can be a member of the public) will have an opportunity to present their case. The hearing is an informal, round-table discussion of the issues led by the Planning Inspector. Cross-examination of other parties is not allowed, but the Planning Inspector may ask questions of any party as he/she sees fit. The Planning Inspector will conduct a site visit accompanied by (at least) a representative of the two main parties.
This is the least common method of appeal. It is a formal process where evidence is given and subject to cross-examination. Some evidence may be required to be given on oath. The Planning Inspectorate may sometimes decide that a public inquiry is the proper method to deal with an appeal and will say this to the parties at an early stage. Often lawyers are involved as advocates and points of law may be raised and argued before the Planning Inspector. Again the Planning Inspector will make a site visit accompanied by (at least) a representative of the two main parties.
You should note that occasions may arise when a planning application may be ‘called-in’ to be determined by the Planning Inspectorate.