It’ll take a long time to get quicker – how PINS is planning to change the inquiries process (slowly)

On 14 May 2019, the Planning Inspectorate published its Inquiries Review Action Plan to explain how it intends to implement the recommendations of Bridget Rosewell CBE’s Independent Review of Planning Appeal Inquiries. This blog considers what progress has been made and what are the main challenges to full implementation.

The Rosewell Review

The PINS Action Plan

Will it be successful?

The Rosewell Review

Having been involved in a large number of major planning inquiries in recent years, I found myself back in February of this year vigorously nodding my head in agreement with the findings of the Rosewell Independent Review of Planning Appeal Inquiries, in particular “that there is substantial scope to improve the planning inquiry appeal process from start to finish”. I fully agreed with the view that improvements were needed to significantly reduce the time taken to conclude planning inquiries while, crucially, still maintaining the quality of decisions and reports. The 22 recommendations set out in the Rosewell Review were designed to address key failings in the inquiries process, focused on three main areas: better technology, earlier engagement by the parties and shorter inquiry programmes.

However, I also approached the review with a healthy dose of scepticism. Having seen first-hand the immense strain that inquiries place on PINS, on top of all the other workstreams for which they are responsible not least of which being the development consent process, I was rather doubtful about how quickly (if at all) these recommendations could be implemented by PINS so as to have a noticeable and beneficial impact on the process.

The PINS Action Plan

A few months on and PINS has now published its Inquiries Review Action Plan to explain how it intends to implement the recommendations of the Rosewell Review. Overall, the PINS response is positive, praising the Rosewell Review for the practical, common sense nature of the recommendations which promise to lead to much faster decisions and to radically improve the experience of users.

The Action Plan confirms that PINS’ ambition is to be deciding planning appeal inquiries within a 26-week target by June 2020. A table of actions, with clear delivery dates, has been produced showing how each of the 22 recommendations will be implemented. On the issue of resourcing, PINS has recently begun its latest recruitment drive, this time looking to recruit another 20 senior planning inspectors. This follows an inspector recruitment exercise in January of this year, during which 200 interviews were completed, 106 offers made and almost all accepted.

So far so good. However, then come the warnings. The Action Plan notes that a recent pilot of the new system has “underlined the size of the challenge and that there isn’t a quick fix”. Indeed, PINS believes that “a sizable transition period is likely to be needed”. Only five of the recommendations have now gone “live”, one of which is the preparation of the Action Plan itself, with 17 recommendations yet to be implemented. PINS also warns that, for the reforms to have maximum effect, all parties involved with planning inquiries will need to adjust their approach. In other words, there are factors in play that are outside of PINS’ control.

A big sticking point seems to be the creation of a new portal for the submission of inquiry appeals (and publication of inquiry documents) by December 2019. According to the Action Plan, a third-party system is being used as an interim measure for the pilot scheme. However the Government Digital Service, with whom PINS is working to establish the new portal, has ruled out the long-term use of a third-party tool and instead required the development of a strategic portal solution that will be internally owned and managed by PINS. This has led to delays, with funding being an unresolved concern. Rather unfortunately this was Recommendation 1 in the Rosewell Review – has PINS failed at the first hurdle?

Having spoken to people involved in appeals that are part of the current pilot scheme, the feedback seems to be that the inquiries process is indeed significantly quicker. The requirement for appellants to notify local planning authorities 10 days in advance of appeal submission (only guidance but could become fixed in legislation) is an important part of this. However, speed has come at a cost, with rumours of inquiry dates being fixed by PINS when whole teams are on holiday, although PINS claims that “a degree of flexibility” will be allowed “in exceptional circumstances”.

The Action Plan notes that the successful delivery of the Rosewell Review recommendations is likely to mean that inquiries are determined more quickly than hearings, which contradicts the logic that inquiries are supposed to be reserved for the most complex casework. According to the Government’s website, it now takes 43 weeks from appeal validation to decision for a hearing and 41 weeks for an inquiry, which must in part be due to the pilot scheme.

To address this, the Plan identifies that PINS will put extra attention towards hearings to improve their timeliness. Sensibly (in my view) the Action Plan also acknowledges that, alternatively, a better approach might be for the length of time required for a case to be decided not to be determined purely based on which procedure it follows but instead on a new set of published priorities (eg focussing on housing delivery or other key infrastructure) as the key determinant for decision timings.

Will it be successful?

That depends on how you define success. Will PINS hit the 26-week target by June 2020? If they enforce tight, inflexible inquiry programmes then probably yes. Will the new system result in more successful legal challenges in respect of decisions made? Possibly, but as Rosewell herself has argued, that may be a worthwhile price to pay if it means that the appeal process as a whole improves. Rosewell has promised to issue a progress report, jointly with PINS, in September 2019, and a full implementation report in June 2020, exactly two years after her appointment as Chair of the review.

Author: Charlotte Dyer, Of Counsel, Planning, London

For further information please contact:

Charlotte Dyer
Charlotte Dyer
Of Counsel, Planning, London
+44 20 7466 2275

Does the Secretary of State’s failure to give reasons on call-in decisions leave us all in the dark?

Last week, the Secretary of State for Housing, Communities and Local Government (“SoS”), James Brokenshire MP, published a written statement in which he announced that he would no longer give reasons for calling-in or declining to call-in planning applications. This comes just short of six months after the Court of Appeal ruling in SAVE Britain’s Heritage that the SoS’s failure to give reasons in the Paddington Cube planning application was unlawful. In the absence of a common law duty to give reasons (see below), the SoS may now make decisions on whether to call-in or decline to call-in planning applications without the requirement to give reasons. We explore below what this means for applicants and other interested parties.

Power to call-in applications

The SoS has a statutory power to direct that applications for planning permission be referred to him instead of being dealt with by local planning authorities. This is a very wide power.

Despite this, in practice, only around 1 in every 23,000 planning applications is called-in each year. This is because, as set out in the Government’s policy statement in October 2012, the SoS should be very selective about calling-in planning applications and should only consider doing so where the application involves issues of more than local importance.

That call-in policy gives examples of cases where the call-in powers might be used, which include (amongst others) where the development might conflict with national policies on important matters or could give rise to substantial cross-boundary or national controversy. The policy is, however, clear that each case will be considered on its individual merits.

The effect of a call-in

If an application is called-in, a public inquiry will be held before a Planning Inspector. The Inspector will then issue a recommendation to the SoS, who will make the final decision on the application.

The call-in process usually results in higher costs for the applicant and a delay to the determination of the application. For this reason, applicants often seek to resist the calling-in of their applications, particularly where the local planning authority is supportive of the development and willing to grant consent at the local level.

In some cases, the calling-in of the application can in itself impact upon the viability of the scheme, a current example being where the delay will push the decision date beyond the coming into force of the Mayoral Community Infrastructure Levy 2 on 1 April 2019 (see our previous blog post of 5 March 2019).

The requirement to give reasons

In December 2001, the Government announced that it would, from that date, give reasons for decisions not to call in planning applications. That statement was confirmed in March 2010. However, there followed a number of instances in which the SoS’s reasons for his decision not to call-in an application were criticised. In one case involving a proposed application for development in Westminster, the reasons were found by the High Court to be plainly wrong on their face. This prompted an about turn by the Government in 2014, when the Government decided that it would actually be more prudent not to give reasons.

However, this change of practice was not widely publicised and in 2018 the Court of Appeal in Save Britain’s Heritage v the Secretary of State for Housing, Communities and Local Government held that the SoS’s failure to give reasons for his decision in March 2017 not to call-in the Paddington Cube planning application was unlawful. Lord Justice Coulson held that there was a legitimate expectation that reasons would be provided based on the Government’s 2001 unequivocal promise, which had not been publicly withdrawn.

Following the judgment, SAVE Britain’s Heritage applauded the Court of Appeal’s decision and announced that it was a major victory for openness and transparency. However, just short of six months later, the Government officially withdrew the 2001 statement. In the absence of a common law duty to give reasons (see below), the SoS may now make decisions on whether to call-in or decline to call-in planning applications without the requirement to give reasons.

What are the implications of this written statement?

From the perspective of the rule of law, it is difficult to reconcile a power that is subject to a published policy stating when the decision maker will exercise that power, with the absence of a duty by the decision maker to publish his reasons for doing so. What purpose does the SoS’s call-in policy serve if he cannot be held accountable for decisions made ostensibly in accordance with that policy? The courts have held that a decision to call-in an application can only be challenged where it is “wildly perverse”, which is a very high bar. What is to stop the SoS ignoring his own policy all together if he does not have to give reasons for his decisions and cannot be challenged in the courts?

In the absence of reasons, applicants and interested parties are left in the dark as to why the SoS made his decision. Pursuant to the “makes no difference” principle, the court must refuse relief in judicial review proceedings if it is highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred, unless the granting of relief is appropriate for reasons of exceptional public interest (for further information on this, see the HSF Administrative and Public Law team’s e-bulletin of 30 January 2019). Without reasons to explain why the decision was made, it will be hard to determine whether the SoS would have made the same decision to call-in or not call-in the application but for the legal flaw in the decision-making process alleged by the claimant.

In the SAVE Britain’s Heritage case, Lord Justice Coulson was clear that the challenge succeeded on the basis of legitimate expectation only and not as a result of a common law duty to give reasons. He held that there are “no good legal policy reasons (let alone strong ones) which require reasons to be given for a decision which is procedural only, and which is not directly determinative of the relevant parties’ rights and obligations“. He believed that it would be unnecessary and burdensome if the SoS had to give reasons every time he decided a straightforward question of who should deal with the planning application (the local authority or the SoS).

However, that fails to give due regard to those applicants whose schemes are significantly impacted by the calling-in of an application. Whilst it is only a procedural decision, it is one which may in itself determine whether or not a scheme can be brought forward and thus have much more far-reaching implications than simply whose name is put on the decision notice.

Author: Charlotte Dyer, Of Counsel, Planning, Real Estate, London

For further information please contact:

Charlotte Dyer
Charlotte Dyer
Of Counsel, Planning, London
+44 20 7466 2275

 

 

Recommendations from the Rosewell Review – how can planning appeal inquiries be made quicker and better?

A publication that has caught the attention of many in the industry this week is the government-commissioned ‘Independent Review of Planning Appeal Inquiries.’ The review, chaired by economist Bridget Rosewell CBE, was tasked in June last year with assessing how planning appeal inquiries could be made quicker and better. The report makes 22 recommendations aimed at reducing the time it takes to conclude planning inquiries, while maintaining the quality of decisions.

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Planning Appeals: How to maximise your chances of success

Author: Charlotte Dyer, Senior Associate, Planning, London

You've been refused planning permission or it has been granted subject to onerous conditions.  Discussions with the local planning authority about revised proposals have not resulted in an alternative solution satisfactory to all parties.  You decide that the next step should be to appeal.  However, before you submit your appeal form, there are some important points that you should consider:

1. Merits of the case 

2. Appoint your legal team early

3. Don't burn your bridges with the Local Planning Authority

4. Decide which procedure

5. Meet the timescales imposed

6. Pay careful attention to the detail

7. Engage with Rule 6 parties

8. Inquiry

 

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