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Propcos e-briefing: Important changes for developers in new planning appeal guidance

    • Real estate sector

    05-11-2013

    On 3 October 2013 the Government announced changes to the planning appeals process in England. The revisions come after a consultation focussing on making the process faster and more transparent, and has resulted in significant changes for those wishing to appeal planning decisions.

    The new procedures apply to appeals in which the local planning authority’s decision notice is dated 1 October 2013 or later, or where the authority was due to make its decision on or after this date but has failed to do so.

    The new regime appears to have taken its lead from the current Scottish procedure which requires the appellant’s full case to be submitted at the time of appeal. Changes have been introduced both at the appeal preparation stage and throughout the procedural process that appellants should be aware of.

    Preparation of Appeal

    Perhaps the most significant change for developers is that an appellant must provide their full statement of case at the beginning of the appeal process. The statement, which must contain full details of the facts and arguments being put forward, should also include all available evidence and be accompanied by any documents referred to. In addition a draft statement of common ground agreed between the local planning authority and the appellant must also be form part of the appeal submission when requesting either inquiries or hearings.

    Consequently, we anticipate that more time will need to be devoted to the pre-submission stage, with appellants having to ‘front load’ much of their preparation to ensure that their full case is put across from the outset.

    Appeals Procedure

    In line with the will to make the planning process more efficient, the changes have also introduced shortened timetables for the various procedural steps.

    The local planning authority will now have a period of only one week (formerly three weeks) from the start date to provide appellants with the completed questionnaire and all supporting documentation. It must also notify interested parties of the appeal within this timeframe. While this move clearly aims to condense the overall process, such preparation within one week may be a challenge for local authorities, depending on the amount of documentation involved.

    LPAs must then submit its full statement of case within five weeks of the start date, rather than six. Where appeals are to be decided by written representations, the appellant’s opportunity to provide its comments on this statement of case has been changed from nine weeks after the start date to the seven weeks.  Appellants will clearly therefore need to be fully prepared to respond, especially in non-determination appeals given the potential limited knowledge of the Council’s position when their full statement of case was submitted.
     
    While appeals proceeding to inquiry still allow for proofs of evidence to be exchanged four weeks before the inquiry date, we anticipate that the scope to introduce new evidence at this stage will be significantly reduced due to the rules requiring a full statement of case to be provided at the outset.

    In the case of appeals following the hearing procedure, no further submissions will be permitted prior to the hearing date following the seven week stage.
    This shortened procedure will have a direct effect on appellants and will necessitate forward planning to ensure that all preparation is carried out as early as possible. The pre-submission stage will now require more activity, as applicants will need to be sure of their case before submitting the appeal. This is likely to raise the costs of appealing and may discourage some from submitting speculative or strategic appeals.

    The option of bespoke timetabling for inquiries will, however, be more widely available. Under the new procedures the appellant and local planning authority will have the opportunity to agree a bespoke timetable for all inquiries likely to sit for three days or more. This will offer a greater flexibility and is likely to see bespoke timetabling  for the majority of inquiries.

    Other Changes

    The publication also introduces new procedures for appeals relating to advertisement consent and minor commercial planning such as shop front development. These are detailed in the new guidance but it is worth noting the timeframes imposed. Appeals relating to advertisement consent must be received within eight weeks of the local authority’s decision notice, or eight weeks from the date on which a decision was due. For minor commercial development, this period is 12 weeks, the same as that for householder appeals.

    Therefore, both developers and LPAs need to be aware of the impact of this new process on their internal procedures and development programmes.  For appellants, an appeal should not be commenced until a comprehensive case has been prepared. Given the time reduction in the overall procedure, and the increased amount of groundwork involved at the outset, forward planning and accurate preparation are essential. An in-depth dialogue with legal representation at the earliest opportunity is therefore encouraged to ensure the best chances of a valid appeal, and the preparation of a robust case.

    For more information contact

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