Pace Making: Progress At PINS

The Planning Inspectorate has certainly been moving at pace to improve its inquiry appeal processes following Bridget Rosewell’s independent review of planning appeal inquiries, which I covered in detail in my 15 March 2019 blog post Accelerated Planning.

The move to a system of imposing inquiry dates has predictably created the greatest fuss, although is possibly the change that will have the most positive effect in terms of cutting out hiatuses caused by the inevitable sparring between parties as to counsel, team and venue availability. The Planning Inspectorate’s latest 3 May 2019 update addresses that issue head-on:

The Planning Inspectorate is continuing to make good progress with taking forward the recommendations in the Independent Review of Planning Appeal Inquiriesand have now begun increasing the number of inquiry appeals being placed into this new way of working. There are clear benefits in progressing with implementing some of the recommendations and we thought it would be helpful to all concerned to explain our reasons.

To begin with, there can be little doubt that the principal thrust of the Review – to significantly shorten the time between receipt of an inquiry appeal and its final decision – is a significant improvement. To this end, we have been able to appoint more Inspector resource to inquiry appeals, than was envisaged in March when we announced the “pilot”, which has enabled us to bring most of these appeals into the process.

Some parties to the appeals have questioned why we have imposed inquiry dates when informing them of the ‘Start’ of the appeal and the name of the appointed Inspector. These letters are sent to the appeal parties as soon as possible after receipt of an inquiry appeal and have generally set the inquiry date to be between 13-16 weeks of the ‘Start’ date. This has been a significant innovation of the new process and provides the parties with clarity as to timescales from the outset.

To implement the recommendations of the Rosewell Review we must move away from our “bespoke” arrangements which gave specific provision for the parties to agree an inquiry date after an appeal had been submitted. Instead, now we are taking the lead in setting an inquiry date at the earliest opportunity, and this has led some parties to ask if there could be a degree of flexibility after the date had been fixed, or whether they could be given time to negotiate a new date.

We appreciate that this new procedure, for affected appeals, is very different to the way inquiry appeals were managed previously, and that some of the recommendations may be challenging, for everyone involved in the appeal. But it would be difficult to deny the significant advantages that an early inquiry date – and thus an early decision date – will bring to all concerned with the process. We will of course consider whether wholly exceptional circumstances are demonstrated by the parties to explain the unreasonableness of the inquiry date that has been set, but at the same time momentum must be maintained if the Review is to pay the dividends it promises.

The inquiry dates that are now being set give confidence to expect that those appeals will be decided in accordance with the timescales set out in Recommendation 21 of the Rosewell Report.

Recommendation 21 was as follows:

“21.The Planning Inspectorate should adopt the following targets for the effective management of inquiry appeals from receipt to decision

(a) Inquiry appeals decided by the inspector
Receipt to decision – within 24 weeks – 90% of cases Receipt to decision – within 26 weeks – remaining 10% of cases

(b) Inquiry appeals decided by the Secretary of State
Receipt to submission of inspector’s report – within 30 weeks – 100% of cases”

If we can move to a situation where these targets are met, I will have a lot of happy clients. In recent years, the unpredictability has been difficult to explain.

In the current pilot cases, PINS is seeking for inquiries to commence within a 13 to 16 week window of the start date.

And what if your advocate or a particular witness is not available? First, we are going to need to factor that into our pre-inquiry preparations: Who is the sub? Has someone else, a good junior, been shadowing everything such that they can step in or assist with the briefing of someone else? Secondly, surely we need to move away from the cult of personality. I suspect the fact that the system is so unfathomable for many clients increases their sense that as long as they hang onto X, Y or Z QC and A, B or C expert witness they will get through it. All credit to X, Y and Z, and A, B and C, but there are plenty of good barristers and advocates, and of course expert witnesses, at all levels. I suspect there may be a problem with your case if only one advocate (and only one “independent” expert witness) is capable of winning it. Additional costs in double-handling or re-briefing should still be outweighed by the overall cost and time savings if we all get this right.

Of course, speedier inquiry dates represent only one aspect of the changes. The Planning Inspectorate’s Independent Review of Planning Appeal Inquiries – Action Plan (April 2019 update), a document which will be regularly updated, sets out comprehensively the other changes being introduced, many of them with immediate effect.

The biggest ones for people to be aware of at the moment include:

⁃ the firm advice that appellants need to be notifying the relevant local planning authority, copying in PINS, at least ten days before submitting an appeal where they consider that the appeal should be dealt with by way of inquiry. This is important because PINS then requests a view from the authority on whether an inquiry is appropriate, within one day of receiving the appeal (in the current interim stage of bringing in the reforms this is within three days). In turn PINS can then issue the start date for the appeal, from which procedural deadlines flow, within five working days of receipt of the appeal rather than the average of seven weeks taken in 2017/2018! After six months of monitoring whether appellants are routinely giving ten days’ advance notice, the Government may take steps to introduce legislation to make it mandatory, so I think we should all play nicely?

⁃ early case management engagement from the inspector, within seven weeks of the start date, which will increasingly be by way of a conference call between the inspector and the parties (informed by a pre-conference note and agenda), followed by the inspector issuing “clear directions to the parties about the final stages of preparation and how evidence will be examined” no later than eight weeks after the start date.

⁃ the inspector’s directions to include identifying the “key matters in contention, where cross-examination of witnesses is required“, and decisions as to whether a topic by topic approach to the calling of evidence is required. We can expect a range of issues to be dealt with by way of roundtable sessions, without cross-examination.

⁃ encouragement for potential rule 6 parties to be identified at an earlier stage.

⁃ consultation is taking place so as to achieve improved and timely statements of common ground so that they can properly inform preparation of proofs of evidence.

⁃ greater focus on deadlines and indeed “MHCLG will look at the policy for the award of costs to see whether it can be extended to include a fine type of award, such as when evidence is not submitted on time“.

Christopher Young QC wrote an interesting post on LinkedIn this week, setting out his, favourable, experiences of and reactions to what he believes to have been the first Rosewell pilot case, an appeal by Bloor Homes in Penkridge, South Staffordshire. There is nothing unusual about the 3 May 2019 decision letter but the inspector had provided a pre-inquiry note indicating that issues relating to landscape impact and loss of agricultural land should be dealt with by roundtable session, and indicating that she would “prepare an agenda for those sessions based on the submitted proofs of evidence, focusing on the areas where there is disagreement“.

I’m not sure whether this was a formal PINS Rosewell pilot, as the pre-inquiry note predated the publication of the final report and the PINS announcement as to its pilot, but clearly this is a sign of things to come. As Chris notes, roundtable sessions will inevitably become more common. Chris’ inquiry was programmed for four days but only took two and a half days (with the final half day being taken up by closing submissions) – an indication perhaps of how a more directed approach by an inspector can cut timescales and therefore cost.

Incidentally, this is not meant as any reflection on Chris, who is one of the absolute best at nailing points comprehensively whilst quickly, but…

Do advocates’ closing submissions need to be quite so long? If the inspector were to impose a sensible word limit, would that not serve to reduce the current arms race? I was at an inquiry a few years ago when our counsel prepared 70 pages of closing submissions, which he then read out, in full. Very different from my memories of the late Roy Vandermeer QC, who famously regularly made his closing submissions without notes (after a long housing inquiry, as a pupil barrister I once had the impossible task of constructing a note of his submissions to provide them afterwards to the inspector. I looked at my scribble and despaired). I know it is the opportunity to encapsulate the party’s final position on all of the relevant issues and to make sure the inspector has one final chance to indicate if anything is not clear, but surely a little nudge from the inspector sometimes would not go amiss? The closing submissions process also places an enormous burden on the advocate, usually entailing lengthy overnight work which is not usually even separately charged!

For a broader summary of the current appeals system, I also recommend the 22 March 2019 House of Commons briefing paper Planning appeals in England.

There is also now a PINS video explaining how to take part in a planning inquiry (23 May 2019).

And that is this week’s news. Oh and our Prime Minister, for whom the housing crisis was apparently the “number one domestic priority” resigned.

Simon Ricketts, 25 May 2019

Personal views, et cetera

Accelerated Planning

James Brokenshire’s 13 March 2019 written statement, made alongside the Chancellor’s Spring Statement, includes some important, if sometimes vague, pointers as to how the Government intends to speed up development management processes and housing delivery, although already we have a good sense of what lies ahead in relation to planning appeals that proceed by way of inquiry.

Delivery

My 3 November 2018 blog post covered Sir Oliver Letwin’s recommendations to Government following his review into the “build out of planning permissions into homes“.

The Secretary of State has now confirmed that the Government will “shortly publish additional planning guidance on housing diversification – to further encourage large sites to support a diverse range of housing needs, and help them to build out more quickly“.

He agrees “with the principle that the costs of increased housing diversification should be funded through reductions in residual land values. The Government is committed to improving the effectiveness of the existing mechanisms of land value capture, making them more certain and transparent for all developments. My focus is on evolving the existing system of developer contributions to make them more transparent, efficient and accountable and my department is gathering evidence to explore the case for further reform.”

I will keep the need for further interventions to support housing diversification and faster build out, including amendments to primary legislation, under review. My department will also work closely with Homes England to identify suitable sites and will look for opportunities to support local authorities to further diversify their large sites.”

Development management

My priority now is to ensure faster decision-making within the planning system. My department will publish an Accelerated Planning Green Paper later this year that will discuss how greater capacity and capability, performance management and procedural improvements can accelerate the end-to-end planning process. This Paper will also draw on the Rosewell Review, which made recommendations to reduce the time taken to conclude planning appeal inquiries, whilst maintaining the quality of decisions. I will also consider the case for further reforms to the compulsory purchase regime, in line with our manifesto commitment.”

We wait to see what detailed proposals the green paper will include for the planning application stage and indeed for appeals that proceed by way of written representations or hearings.

Bridget Rosewell’s independent review of planning appeal inquiries was published on 12 February 2019. The executive summary sets out the current statistics as follows:

8. “On average, about 315 planning appeals each year are the subject of an inquiry (inquiry appeals), comprising 2% of the total number of planning appeal decisions. Around 81% of inquiry appeals are decided by planning inspectors on behalf of the Secretary State. The remaining 19% of cases (recovered appeals and called-in applications) are decided directly by the Secretary of State, having regard to an inspector’s report.

9. Although relatively small in number the scale of development, particularly housing development, that is determined through inquiry appeals is significant. In 2017/18 over 42,000 residential units were included in inquiry appeal schemes, of which just over 18,600 units were allowed/approved. This represents 5.4% of the 347,000 total approved residential units in the year 2017-18.

10. In 2017/18, it took an average of 47 weeks for inspector-decided cases from receipt of the appeal to a decision letter being issued. On average, it took 60 weeks from the point of validation of an appeal to the submission on an inspector’s report to the Secretary of State for recovered appeals and 50 weeks (from validation to submission of the inspector’s report) for called-in applications. It then took, on average, a further 17 weeks after the inspector’s report had been submitted for the Secretary of State to issue a decision for recovered appeals and a further 26 weeks for called-in applications. In 2017/18, 111 inquiry appeals were withdrawn before a decision was made.”

MHCLG updated its website page Appeals: how long they take on 14 March 2019. That 47 weeks average referred to in paragraph 10 has now slipped to 50 weeks (if that 50 weeks figure excludes recovered appeals and call-ins).

Bridget Rosewell had 22 recommendations as to how the planning appeal inquiry process can be improved and decisions made quickly:

1.The Planning Inspectorate should ensure the introduction of a new online portal for the submission of inquiry appeals by December 2019, with pilot testing to start in May 2019.

2.The Planning Inspectorate should work with representatives of the key sectors involved in drafting statements of case to devise new pro formas for these statements which can then be added to the new portal and include, where appropriate, the introduction of mandatory information fields and word limits.

3.The process of confirming the procedure to be used should be streamlined. Where an inquiry is requested, appellants should notify the local planning authority of their intention to appeal a minimum of 10 working days before the appeal is submitted to the Planning Inspectorate. This notification should be copied to the Inspectorate.

4.The Planning Inspectorate should ensure that only complete appeals can be submitted and ensure that a start letter is issued within 5 working days of the receipt of each inquiry appeal. The start letter should include the name of the inspector who will conduct the appeal.

5.The practice of the Planning Inspectorate leading on the identification of the date for the inquiry should be restored, with all inquiries commencing within 13 to 16 weeks of the start letter.

6.The Ministry of Housing, Communities and Local Government (MHCLG) should consult on the merits of appellants contributing towards the accommodation costs of the inquiry.

7.MHCLG and the Planning Inspectorate should substantially overhaul the approach to the preparation of statements of common ground.

8.a) In every inquiry appeal case, there should be case management engagement between the inspector, the main parties, Rule 6 parties and any other parties invited by the inspector, not later than 7 weeks after the start letter.
(b) Following the case management engagement, the inspector should issue clear directions to the parties about the final stages of preparation and how evidence will be examined, no later than 8 weeks after the start letter.

9.The inspector should decide, at the pre-inquiry stage, how best to examine the evidence at the inquiry and should notify the parties of the mechanism by which each topic or area of evidence will be examined, whether by topic organisation, oral evidence and cross-examination, round-table discussions or written statements.

10.The Planning Inspectorate should ensure all documents for an inquiry appeal are published on the new portal, in a single location, at the earliest opportunity following their submission.

11.The Planning Inspectorate should ensure the timely submission of documents. It should also initiate an award of costs where a party has acted unreasonably and caused another party to incur unnecessary or wasted expense.

12.The Planning Inspectorate should amend guidance and the model letter provided for local planning authorities to notify parties of an appeal, to make it clear that those interested parties who want Rule 6 status, should contact the Inspectorate immediately.

13.The Planning Inspectorate should consult with key stakeholder groups, to update its procedural guidance to set out clear expectations on the conduct of inquiries, based on a consistent adoption of current best practice and technology. Updated guidance should encourage and support inspectors in taking a more proactive and directional approach.

14.The Planning Inspectorate should ensure that its programme for improving operational delivery through greater use of technology fully exploits the opportunities available to enhance the efficiency and transparency of the inquiry event, such as the use of transcription technology for inspectors and publishing webcasts of proceedings.

15.Alongside other recommendations that will improve the transparency and clarity of the process (Recommendations 10, 12, 13 and 14), the Planning Inspectorate should develop a more effective and accessible guide to the inquiry process for interested parties, including members of the public.

16.Programming of inspector workloads should ensure there is enough time to write up the case immediately after the close of the inquiry.

17.a) To minimise the number of cases that need to be decided by the Secretary of State, MHCLG should keep their approach to the recovery of appeals and called- in applications under review. b)The Planning Inspectorate should work with MHCLG to identify ways that technology can be used to speed up the process of preparing the inspector’s report to the Secretary of State.

18.The Planning Inspectorate should submit an action plan to the Secretary of State by April 2019. The action plan should set out how it will ensure that the necessary organisational measures are put in place to deliver the proposed timescale targets and wider improvements by no later than June 2020. This should include the mechanisms by which sufficient inspectors can be made available. The action plan should also set out challenging, but realistic, intermediate milestones to be achieved by September 2019.

19.The Planning Inspectorate should review the issue of withdrawn appeals and consider how this impact on its work can be minimised. To deliver this the Inspectorate should:

(a)  always collect information from appellants about why an appeal is withdrawn

(b)  initiate an award of costs where there is evidence of unreasonable behaviour by a party in connection with a withdrawn appeal

(c)  with the benefit of more detailed information, review whether further steps can be taken to reduce the impact of withdrawals on its resources and other parties.

20.The Planning Inspectorate and MHCLG should regularly discuss the practical impact of new policy and guidance on the consideration of evidence at inquiries, with those parties who are frequently involved in the planning appeal inquiry process.

21.The Planning Inspectorate should adopt the following targets for the effective management of inquiry appeals from receipt to decision

(a) Inquiry appeals decided by the inspector
Receipt to decision – within 24 weeks – 90% of cases Receipt to decision – within 26 weeks – remaining 10% of cases

(b) Inquiry appeals decided by the Secretary of State
Receipt to submission of inspector’s report – within 30 weeks – 100% of cases

22.The Inspectorate should regularly report on its performance in meeting these timescales and what steps it is taking to expedite any cases that take longer.

(a)  The Planning Inspectorate should use its Transformation Programme to ensure there is robust and comprehensive management and business information, which is regularly collected and reported, on all aspects of their operation.

(b)  In developing an improved suite of information the Inspectorate should also:

ensure their digital case management record system records information on key variables in a consistent way

agree with MHCLG a new set of key performance indicators to effectively monitor the inquiry appeal process from end to end, including the availability of senior inspectors. “

These tables give a sense of what we might expect:

The Planning Inspectorate announced on 13 March 2019 that it is carrying out a trial of accelerating a small number of inquiry appeals as part of a pilot of holding inquiries much earlier than at present. For these appeals it will move away from its “bespoke” process whereby PINS invites the parties to agree a programme, including an inquiry date.

Before long we will all have to adapt our approaches to individual appeals in the interests of a more generally speedy process. It will be increasingly difficult to seek to negotiate a later date than PINS proposes (even when the main parties have no objections) in order to accommodate particular team members’ availability.

For the Inspectorate, it’s certainly going to be a period of change. It was announced today, 15 March 2019, that Graham Stallwood, currently chief planning officer at the Royal Borough of Kensington and Chelsea and chairman of the board of trustees of the RTPI, has accepted a position as PINS’ Director of Operations, commencing in May. Graham – you will be excellent!

For those of us who lodge and coordinate appeals for developer clients, well we are going to need to get to grips with a new IT interface for the submission of appeals and new case management processes but above all find the strength to tell our clients the news that, having been at the heart of strategic thinking in relation to a decision to invest in an appeal and having shaped the statement of case, their favourite QC may not in fact be available for that crucial inquiry…

Simon Ricketts, 15 March 2019

Personal views, et cetera

Speedy Delivery, Richland, Washington, MA

Maximus: Dove J Ruling On PINS Validation Approach

My 14 April 2018 blog post Telephone Kiosks v Homes commented on the rash of prior approval applications for “telephone kiosks” under Part 16 Class A of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015. I queried in passing as to whether some of these applications met the test in the General Permitted Development Order that the development should be for the purpose of the electronic communications code operator’s electronic communications network. I didn’t know at the time that a more basic (and surely from the operator’s perspective entirely avoidable) dispute was under way between one operator and the Planning Inspectorate.

The background to Maximus Networks Limited v Secretary of State (Dove J, 25 July 2018) was that Maximus had lodged around 390 appeals in situations where either the relevant local planning authority had not determined a prior approval application within the statutory period or had decided not treat the application as valid. The London Borough of Hammersmith and Fulham had declined to validate the applications on the basis that Maximus had, in submitting their applications, not met the statutory requirement to provide evidence that notice had been served on the relevant land owner (which in every case was either the London Borough of Hammersmith and Fulham or Transport for London). Maximus “contended that since the land the subject of the application was in the ownership of the highway authority who were also the local planning authority there was no need for compliance with this condition.” The Planning Inspectorate refused to validate the appeals.

Maximus took the position that whilst it is unlawful for a local planning authority to accept an application which does not meet the statutory validation requirements (section 327A of the Town and Country Planning Act 1990) the position is different on appeal, in that the Secretary of State is not constrained by section 327A and, pursuant to section 79 of the 1990 Act, “may deal with the application as if it had been made to him in the first instance” and therefore has a discretion to waive any procedural irregularity. By the time of the court hearing before Dove J, issues had been resolved in all save 53 appeals.

Maximus relied on three grounds of challenge:

1. PINS had wrongly approached the appeals on the basis that they did not have a discretion to treat them as validly made.

2. “even if PINS did, in reality, recognise that there was a discretion which had to be exercised as a consequence of the legislative framework and authorities which are set out below, the discretion was in fact exercised irrationally.”

3. In the event that the court were to find that the appeals were not validly made, Maximus was entitled to refund of the application fees that it had paid to the local planning authorities.

Dove J accepted that PINs did have a discretion to treat the appeals as valid:

“...section 79 of the 1990 Act provides the defendant with a discretion to exercise as to whether or not to accept an appeal even if it is found to be wanting in relation to any procedural aspect. This discretion arises both under section 79(1) which contains a wide discretion for the Secretary of State to allow or dismiss an appeal, reverse or vary the local planning authority’s decision or any part of it, and deal with the application as if made to the defendant in the first instance. A discretion also arises under section 79(6) which provides that the defendant has a discretion to decline to determine an appeal or proceed with its determination if it emerges during the course of the appeal’s determination that the local planning authority could not have granted planning permission…

However, he considered that PINS had indeed exercised its discretion:

“It needs to be borne in mind that this was an administrative decision and thus an overly forensic scrutiny of its terms would be inappropriate. It is particularly pertinent in my judgment that, without being a detailed legal treatise, the decision sets out the nature of the statutory discretion set out in section 79 and summarises the decision of the Court of Appeal in Bath v North East Somerset. I am unable to accept that what follows in terms of PINS’ decision involves a complete negation of the exercise of discretion under section 79. The decision goes on to note the view that had been formed that there had been a failure to comply with the formal requirements in relation to notice under part 16 of schedule 2 of the GPDO and in my judgment that is not evidence of PINS assuming that they only have power to conclude that there was no jurisdiction to entertain appeals, but rather explaining their justification for concluding in applying section 79 of the 1990 Act that the applications have not been valid and therefore the appeals should not be entertained.

In my judgment a fair reading of the decision leads to the conclusion that it is a concise analysis of the basis upon which PINS were declining to accept jurisdiction in respect of the appeals, rather than an assertion that PINS had no power at all to do anything other than refuse to accept the appeals. ”

Dove J accepted that PINS had exercised its discretion rationally in determining that a local authority could be prejudiced in circumstances where it was not served with notice of the making of an application in its capacity as landowning highways authority:

A local authority as a land owner may have very different interests and concerns to take account of in exercising its powers to own and control land. It cannot be assumed that when an application of this kind is made to a local planning authority that the element of the local authority exercising its planning functions will automatically or of necessity consult that part of the council concerned with protecting its interests as a land owner or automatically be aware of all matters which the department responsible for safeguarding the council’s interests as land owner would wish to draw to their attention. Certainly that assumption is not contained within the statutory framework which, uncontroversially, by implication provides for the separate notification of the land owner when it is a local authority as part and parcel of the formalities for the application itself. […] It is a wholly unproved hypothesis that simply because the local planning authority is part of the same organisation as the affected landowner no prejudice from failing to notify the land owner could conceivably arise. It may be that the local authority as land owner would have different concerns and observations to draw to the attention of the local planning authority exercising its development control functions. I am unable to accept therefore that this observation in the pre-action protocol letter betrays circular reasoning or an irrational approach. ”

So, PINS was perfectly entitled to turn the appeals away. However, there was a sting in the tale for the authorities; Dove J accepted that the application fees paid were as a result refundable:

In my view where, as here, the defendant concludes that an appeal is to be rejected on the basis that application is invalid (and he declines to exercise his discretion under section 79 to nonetheless continue to consider the appeal) then that is in effect a conclusion that the application was and should have been rejected as invalid and therefore falls within the scope of regulation 14(3) of the 2012 Regulations. It follows the claimant’s case in relation to Ground 3 should succeed, leading to a declaration that in respect of those applications made to the first interested party they are entitled to have their fees refunded.”

As mentioned, an avoidable dispute, but an interesting reminder of the slightly different approach to validation requirements that applies on appeal. And something other to write about than the NPPF.

Simon Ricketts, 29 July 2018

Personal views, et cetera

The Loneliness Of The Long Distance Planning Inspector: Courts Support Approach To Setting & Valued Landscape

Two cases last week reminded me as to how difficult the role of the planning inspector is. The two inspectors in question, architect John Gray and solicitor Karen Ridge, both faced conflicting evidence and submissions on issues which were largely matters of evaluation and judgment, albeit within narrow policy tramlines, at inquiries lasting six and eight days respectively. Congratulations are due to them both given that their decisions survived legal challenges – or, following Lord Carnwath’s approach in Suffolk Coastal (“the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly“) and the regular judicial criticism as to “excessive legalism” on the part of claimants, is it simply that the hurdle for a successful challenge is nowadays higher?

In Catesby Estates Limited and Secretary of State v Steer (Court of Appeal, 18 July 2018) at first instance Lang J had quashed John Gray’s decision letter in which he had allowed two appeals by Catesby, one relating to a proposal for up to 400 dwellings and a convenience store and the other for up to 195 dwellings, both on land about a mile away from the grade 1 listed Kedleston Hall.

The arguments at inquiry and subsequently revolved around the extent to which the site should be treated as within the setting of the hall and other designated heritage assets. Since the 1960s, views of the site from the hall and vice versa had been blocked by a belt of trees known as the “Derby Screen”, planted at the time to obstruct views of the expanding suburbs of Derby. Given the protection given to the setting of listed buildings by way of section 66 (1) of the Listed Buildings Act 1990 and the NPPF, supported by Historic England guidance, much turned on that question.

Lang J had agreed with submissions of the claimant and Historic England that “the Inspector adopted an artificially narrow approach to the issue of setting which treated visual connections as essential and determinative. In adopting this approach, the Inspector made an error of law.

However, the Court of Appeal undertook a close examination of the inspector’s reasoning and overturned Lang J’s ruling. They found that the inspector had correctly considered two potential ways of looking at the setting of the hall, one considering visual and physical connections and the other looking at wider historical, social and economic connections. The court determined that he had then gone on to consider all the relevant issues before, in the particular circumstances, arriving at a narrower interpretation. His conclusions did not “betray an unlawful approach, in which considerations other than the visual and physical were disregarded“.

In reaching that conclusion, McFarlane LJ’s judgment in the Court of Appeal does usefully set out the approach to setting that should be taken by decision makers:

Although the “setting” of a listed building is a concept recognized by statute, it is not statutorily defined. Nor does it lend itself to precise definition (see R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427, at paragraphs 53 to 58). Implicit in section 66 of the Listed Buildings Act, however, is that the setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside it. Identifying the extent of the setting for the purposes of a planning decision is not a matter for the court, but will always be a matter of fact and planning judgment for the decision-maker. And as Sullivan L.J. said in R. (on the application of The Friends of Hethel Ltd.) v South Norfolk District Council [2011] 1 W.L.R. 1216, “the question whether a proposed development affects, or would affect the setting of a listed building is very much a matter of planning judgment for the local planning authority” (paragraph 32 of the judgment).”

As McFarlane LJ had set out previously in the Williams case, “the circumstances in which the section 66(1) duty has to be performed for the setting of a listed building will vary with a number of factors – typically, “the nature, scale and siting of the development proposed, its proximity and likely visual relationship to the listed building, the architectural and historic characteristics of the listed building itself, local topography, and the presence of other features – both natural and man- made – in the surrounding landscape or townscape”, and possibly “other considerations too”, depending on “the particular facts and circumstances of the case in hand” (paragraph 53). To “lay down some universal principle for ascertaining the extent of the setting of a listed building” would be, I thought, “impossible”. But – again in the particular context of visual effects – I said that if “a proposed development is to affect the setting of a listed building there must be a distinct visual relationship of some kind between the two – a visual relationship which is more than remote or ephemeral, and which in some way bears on one’s experience of the listed building in its surrounding landscape or townscape” (paragraph 56).

This does not mean, however, that factors other than the visual and physical must be ignored when a decision-maker is considering the extent of a listed building’s setting. Generally, of course, the decision-maker will be concentrating on visual and physical considerations, as in Williams (see also, for example, the first instance judgment in R. (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin), at paragraph 89). But it is clear from the relevant national policy and guidance to which I have referred, in particular the guidance in paragraph 18a-013-20140306 of the PPG, that the Government recognizes the potential relevance of other considerations – economic, social and historical. These other considerations may include, for example, “the historic relationship between places“.”

The judge drew out three points:

First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision- maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it.”

Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision- maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next.

Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 W.L.R. 1865 (at paragraph 25) – that “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly“.”

In CEG Land Promotions II Ltd v Secretary of State (Ouseley J, 18 July 2018), inspector Karen Ridge had dismissed an appeal in relation to a scheme for up to 175 dwellings and associated development on land adjoining Wendover in Buckinghamshire.

The challenge revolved around two issues:

⁃ Whether the inspector was correct to conclude that there would be “the irrevocable loss of part of a valued landscape” for the purposes of paragraph 109 of the NPPF (which sets out the principle that the planning system should protect and enhance valued landscapes) given that the appeal site itself was not “valued landscape” but rather formed part of a wider “valued landscape”

⁃ whether the inspector had double counted the effects on landscape in weighing up the considerations against grant of planning permission, by taking into taking into account breach of paragraph 109 separate from breach of relevant local plan policies in relation to landscape, together with related points as to whether paragraph 109 amounts to “specific policies” that “indicate that development should be restricted“, to be taken into account in the paragraph 14 “tilted balance”.

Ouseley J introduces consideration of the NPPF with a note of caution as to its status:

In relation to development control, despite some of its language, it is no more than a material consideration, to be taken into account in deciding planning applications under s70 of the Town and Country Planning Act 1990. It is a material consideration which may indicate that a decision should be made which does not accord with the development plan; s38(6) Planning and Compulsory Purchase Act 2004.

After a detailed analysis, Ouseley J found no evidence of “double-counting” harm:

There is a danger of over-analysing decision letters, with the risk that in doing so, error is found where none exists.”

He similarly found nothing wrong with the inspector’s “valued landscape” conclusion:

It would be […] bizarre to adopt a wholly artificial approach to landscape evaluation where, in most cases, a development site is but part of a wider landscape. In my judgment, the Inspector, in the case before me now, has analysed the issue very well and come to the entirely correct conclusion.”

Both judgments, together with the inspectors’ decision letters under challenge, would make good case studies for the current independent review chaired by Bridget Rosewell into the planning appeal inquiry process. Neither development proposal was particularly large but both led to relatively long inquiries. Against the context of unclear, multiple layers of policy and guidance and the predictable dissection by each of the main parties as to policy meaning and application, is there really any room for shortening the process without affecting its quality? Controversial question: Are the layers of abstraction, and the lonely task of sitting down to write a lengthy decision that is bullet-proof in its reasoning, necessary for a high quality process, or simply impeding it?

And regardless of the answer to that question, let us recall that only 2% of planning appeals proceed by way of inquiry and it should surely be at least as important that the Planning Inspectorate urgently reduces its timescales for processing appeals that are conducted by way of written representations or hearings, as well as by way of simpler (ie “non-bespoke”) inquiries, given the statistics set out its latest annual report (12 July 2018).

Simon Ricketts, 20 July 2018

Personal views, et cetera

Long Players: Time & Money

Is there more that can be done to encourage timely resolution of issues that arise at planning application stage?

Two prompts for this blog post:

1.Provectus Remediation Limited v Derbyshire County Council (Sir Wyn Williams, 8 June 2018), which considered the circumstances in which an applicant for planning permission is entitled to a full fee refund if the application is not determined within 26 weeks.

2. The Secretary of State’s Lotmead Farm, Swindon decision dated 13 June 2018 to accept his inspector’s recommendation to award the local authority its costs against the appellant for unreasonable behaviour in relation to two appeals – on the basis that the appeal process had been used to “evolve the schemes“, contrary to the Planning Inspectorate’s procedural guide (the Secretary of State having dismissed the appeals in a separate decision letter of the same date).

Planning application refunds

In our ridiculous legislative patchwork you need to look at the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 which amended the 2012 Regulations from 1 October 2013 so as to introduce, as Regulation 9A, the right for an applicant to have its application fee refunded “in the event that the local planning authority fail, or the Secretary of State, in relation to an application made under section 62A of the 1990 Act fails, to determine the application within 26 weeks of the date when a valid application was received by the local planning authority or the Secretary of State, as the case may be.

Regulation 9A (2) provides that the right does not apply where “the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period“, the application has been called in, is the subject of an appeal or of judicial review.

In the Provectus case, the claimant had submitted its planning application on 14 September 2014, paying an application fee of £44,000, withdrew the application and resubmitted the application on 22 December 2015 (no additional fee payable due to Regulation 9 of the 2012 Regulations), which was registered by the local planning authority on 25 January 2016. Further environmental information was requested by the authority in April 2016, which was provided (following an extension of time requested by the claimant) in July 2016. On 3 August 2016 the authority requested an extension of time for determining the application and an extension to 7 November 2016 was agreed. Further environmental information was then sought by the authority during the period, the claimant’s agent agreed to that and then was replaced by another agent, which no longer agreed to provide the information, arguing that it had in part already been provided and in part was unnecessary. In December 2016 the claimant appealed on the basis of non-determination and in March 2017 requested that the authority refund the fee.

So in short, a real mess but unfortunately not an unusual sequence of events. From a limited knowledge of events gained solely from the account in the judgment, I would guess that neither side particularly smelt of roses.

The claimant judicially reviewed the decision of the authority to refuse to refund the application fee. The authority took the position that Regulation 9A (2) disapplies the right where the applicant and authority have agreed an extended period for determining the application. The claimant argued that this should not be the case if the application is not then determined within the agreed extended period. To assist their respective stances, both parties’ counsel sought to rely on different parts of the explanatory memorandum that accompanied the 2013 Regulations.

Wholly unsurprisingly, the judge rejected any purposive interpretation:

A refund of a fee paid at the time of a planning application should be made only if a period of 26 weeks has elapsed from the receipt of a valid application and that application has not been determined by the local planning authority. In my judgment, if the applicant and the local planning authority agree in writing that the 26 week period should be extended the planning fee paid by the applicant does not fall to be refunded even if the local planning authority fails to determine the application within the extended period.”

So the claimant did not recover its £44,000 and now faces not only a costs bill from its own lawyers but liability to pay the authority’s costs in relation to the litigation.

The case does highlight a few things:

1. Don’t forget about the right to a refund.

2. Take it into account in your decision making as to whether to agree a time extension.

3. The Regulations plainly risk giving rise to perverse incentives: (1) it is so much safer for an authority if it can agree an extension of time, after which it is not at risk of a fee refund however poor its performance and (2) canny applicants may decline to agree time extensions where an application is running into the sand.

I did wonder to myself why the argument wasn’t made by the claimant that at least 26 weeks had already passed between the submission of a valid application in December 2015 and the agreed time extension but I assume that this wouldn’t have worked given that the formal request under the EIA Regulations for further environmental information would have had the effect of stopping the clock running until the information had been provided and/or that the agreed extension of time for providing that additional environmental information may have itself disapplied Regulation 9A? As ever reality is more complicated than legislation envisages.

Using the appeal system to “evolve” a scheme

Where there is lack of engagement on the part of a local planning authority, what real remedy is there aside from an appeal? And yet Annexe B of the Planning Inspectorate’s procedural guide seeks to encourage resolution of issues before an appeal has been submitted, reflecting the advice in the Planning Practice Guidance:

Before making any appeal the party seeking permission should first consider re-engaging with the local planning authority to discuss whether any changes to the proposal would make it more acceptable and likely to gain permission. It is possible that a further planning application may be submitted without charge. However, this will depend on the circumstances of each case, so parties should ask the local planning authority for further details.”

Annexe M of the PINS procedural guide states:

M.2.1 If an appeal is made the appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought.

M.2.2 Where, exceptionally, amendments are proposed during the appeals process the Inspector will take account of the Wheatcroft Principles when deciding if the proposals can be formally amended. In the ‘Wheatcroft’ judgment22 the High Court considered the issue of amendments in the context of conditions and established that “the main, but not the only, criterion on which… judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation”. It has subsequently been established that the power to consider amendments is not limited to cases where the effect of a proposed amendment would be to reduce the development.

M.2.3 Whilst amendments to a scheme might be thought to be of little significance, in some cases even minor changes can materially alter the nature of an application and lead to possible prejudice to other interested people.

M.2.4 The Inspector has to consider if the suggested amendment(s) might prejudice anyone involved in the appeal. He or she may reach the conclusion that the proposed amendment(s) should not be considered and that the appeal has to be decided on the basis of the proposal as set out in the application.”

The position in which the developer found itself at the Lotmead Farm appeals was that it had sought pre-application advice from Swindon Borough Council over a period from December 2013 to May 2015 in relation to a proposal for up to 2,600 homes together with associated development, on a site with a strategic allocation in the local plan. An application for outline planning permission for the whole scheme as well as an application for outline permission for an initial phase of 200 homes were made on 30 April 2015. The council made a series of requests for further information and for extensions of time. The council refused the applications on 30 June 2016 at a point where the developer was seeking to resolve or at least narrow the issues.

After submitting appeals against the refusals the developer then made a series of amendments to the proposals to seek to address the reasons for refusal. At a pre-inquiry meeting the developer indicated the scope of the amendments that would be made and that an ES addendum would shortly be publicised. The inspector postponed the inquiry to allow participants in the inquiry to have sufficient preparation time. The amendments apparently were then more significant than had been identified. The changes included an additional 2 form entry primary school, an increase in the red line area, changes to the transport proposals, to all of the parameter plans and to the illustrative masterplan and green infrastructure parameter plans. “Moreover, over the following months additional amendments and information were submitted by the appellant and corrections were made to submitted documents“. The ES addendum entailed six of the topic areas being superseded.

In his report on the appeals, the inspector sets out the amendments in detail before stating at paragraph 10.14:

In conclusion, the amended schemes are very significantly different to those determined by the Council and have evolved considerably during the course of the appeals. To use the appeal process in this way is contrary to Procedural Guidance and does not sit comfortably with the Wheatcroft principle. There are no exceptional circumstances to justify this approach. No specific case of prejudice has been highlighted but compliance with the Procedural Guidance is the best way to ensure no-one is disadvantaged through the appeal process.”

She considered that it was appropriate to consider the appeals on the basis of the originally submitted proposals, although (since the appeals had been recovered for the Secretary of State’s own determination) she considered the proposed revisions in detail as well in case the Secretary of State took a different approach. She recommended that the appeals be dismissed, whether or not the revised proposals were considered.

In his decision letter, the Secretary of State accepted the recommendation that the revised proposals should not be considered:

13. The Secretary of State has given careful consideration to the Inspector’s analysis at IR10.1-10.15. The Secretary of State has taken into account that all parameter plans and the illustrative masterplans were amended (IR10.6). The Secretary of State has further taken into account that the ES also was substantially reviewed, with six of the topic chapters being superseded. The Secretary of State has further taken into account at IR10.7 that further amendments were made including proposals for access, surface water management, trees and landscaping. For the reasons given at IR10.6-10.7, the Secretary of State agrees with the Inspector at IR10.7 that the evolution of the proposals results in an overall very considerable change to the schemes and to the quality of the supporting information.

14. For the reasons given at IR10.6-10.7, the Secretary of State agrees with the Inspector at IR10.8 that the amended schemes are not the schemes determined by the local planning authority in June 2016 and on which interested people’s views were sought (IR10.8). The Secretary of State agrees with the Inspector that the narrowing of the areas of dispute was of assistance to the efficient running of the inquiry but was carried out very late in the day. He further agrees that the approach adopted by the appellant during the course of the appeals has not been in accordance with procedural guidance (IR10.8).

15. As such, the Secretary of State agrees with the Inspector at IR10.9 that the changes to the proposals in the Masterplan and the Phase 1 appeals are sufficiently material that consultation on the amendments would be essential.

16. The Secretary of State has taken into account the Inspector’s conclusions on consultation at IR10.10-10.13. The Secretary of State agrees with the Inspector at IR10.14 that the amended schemes are very significantly different to those determined by the Council and have evolved considerably during the course of the appeals. He further agrees that to use the appeal process in this way is contrary to procedural guidance and does not sit comfortably with the Wheatcroft principle and there are no exceptional circumstances to justify this approach; and agrees that no specific case of prejudice has been highlighted but compliance with the procedural guidance is the best way to ensure no-one is disadvantaged through the appeal process (IR10.14). He concludes, in agreement with the Inspector, that the appeals should be determined on the basis of the original proposals (IR10.15).”

A separate report and decision letter addressed an application for costs that was made by the borough council. The inspector recommended that a full award of costs be allowed:

Unreasonable behaviour resulting in unnecessary or wasted expense, as described in the Planning Practice Guidance, has been demonstrated in that:

• appeals were made on the original schemes when there was no reasonable prospect of success, and

• the appeal process was used to evolve the schemes, which was contrary to Procedural Guidance.”

She noted that if amendments to the proposals had been pursued through another application “there would be a greater probability of compromise on both sides, outside of the adversarial appeal process. The normal development management process has been avoided.”

The Secretary of State agreed.

Perhaps here the circumstances were exceptional but I do worry whether this is the right direction for the planning system to be heading in – although I appreciate that the Government and the Planning Inspectorate would prefer a clean, front-loaded appeal process that is only used as a last resort. If anything may conceivably focus a local planning authority on resolving matters with an applicant, it is the risk that its position may come under scrutiny at inquiry. I do not know if this was the case at Lotmead Farm but sometimes it is impossible to ascertain what the authority’s position is, or what changes to a scheme may be considered acceptable. If the developer has to wait for a refusal notice and start again with a further application before appealing, without the ability to bring matters to a head by way of the appeal and changes made as part of the appeal process, appealing becomes increasingly impractical as an option (and the authority knows it).

Of course there has to be a limit to the scale of any amendments made at the appeal stage. But as long as the amendments are fully consulted upon is there really such a problem if they improve the scheme and ensure that permission can be granted by the inspector or Secretary of State rather than a further application being required? Not only do we now have an appeal process that is increasingly slow, we have a process that is increasingly impractical in relation to complex schemes, where interation is inevitable and surely no bad thing.

At least through its appeal, notwithstanding not achieving permission and having an expensive adverse award of costs against it, the Lotmead Farm developer did manage to narrow various issues with the authority and third parties, and secure detailed comments from the inspector on various elements of its proposals, some negative, some negative, but sufficient presumably now to form the firm basis for a further application. The inspector even identified a series of elements of the section 106 package that did not comply with regulation 122 and which presumably will not be included next time round (which will save a substantial sum). It is just a shame that there is not the ability to secure, more nimbly, equivalent independent expert input during the application stage itself so as to resolve differences – rather than tie everyone up in a slow, expensive and adversarial process.

Simon Ricketts, 15 June 2018

Personal views, et cetera

Telephone Kiosks vs Homes

Does the flap of a butterfly’s wings in Brazil set off a tornado in Texas?” (Edward Lorenz)

Congratulations to Trudi Elliott for her well-deserved appointment as independent chair of the Planning Inspectorate’s board of directors on 1 April 2018. She is uniquely qualified for the role and it is such a crucial time for the Planning Inspectorate.

As far as I’m concerned PINS has been one of the country’s most impressive bodies, truly independent in its decision-making, rigorous and non partisan in its approach and in recent years increasingly open as to the targets it is working to and the challenges it faces. Sarah Richards appears to be a competent chief executive and in the best traditions of the organisation.

However, I am worried that all is not well. Current average performance timescales for appeals by way of written representations, informal hearings and inquiries are reported to be as follows, as at 20 March 2018:

– written representations are taking 24 weeks overall (with the first ten weeks being to start date)

– hearings are taking 36 weeks overall (with the first 17 weeks being to start date)

– inquiries are taking 49 weeks overall (with the first five weeks being to start date).

Whilst the numbers do not appear to be worsening materially over the last year or so, they are certainly not materially improving, at a time when you would think that the Government should be pulling every lever. Furthermore the most frustrating delays are between validation of the appeal and receipt of the ‘start date’ letter, which sets the procedural deadlines for the appeal process itself. Until the start date, you’re just sitting in the in-tray.

Whilst individual experiences are inevitably anecdotal, we are acting on one appeal, in relation to a scheme for around 70 apartments (refused by members against the officers’ recommendation), where an appeal was submitted on 14 December 2017, with the written representations appeal procedure requested, validated on 9 January and yet still no start date.

Not quite the flap of a butterfly’s wing, but I posted a frustrated tweet on 20 March commenting on the delay.

Various people responded to the tweet with their own similar recent experiences, which led Mark Wilding to write a good piece in Planning magazine on 28 March Why new inspectorate data substantiates complaints about lengthening appeal delay. That in turn for instance led to a former inspector writing to the magazine with his own speculation as to the reasons for the current problems.

After the Mark Wilding piece, I wrote on 3 April to Sarah Richards to provide more details about the particular appeal in case something could be done to unlock the continuing delay in obtaining a start date. Sarah responded very quickly on 6 April. She made clear that of course she could not intervene in the particular appeal but she took the opportunity to set out the challenges which PINS is currently facing. As she said in her response that she would do, she adapted the response into an open letter to Planning magazine which it published online on 12 April.

One particular passage in her letter was news to me:

The demand on our resources has been compounded by the unexpected receipt of more than 1,000 prior approval appeals for phone kiosks, and that number is likely to increase. Currently these have been absorbed into our normal planning appeal work, with consequent delays. We are now adopting a different model to process these appeals which will use our non-salaried inspectors, and this should release capacity back to mainstream work. This will have a positive impact on the overall time taken to determine appeals over the coming months.”

So one of the reasons that there are currently delays in the processing of appeals for housing and no doubt other forms of development is a deluge of prior approval appeals for phone kiosks??

Who uses a phone kiosk any more, I naively thought. Well of course advertising companies do, for a start.

I did a little digging and I now see that there is this huge drain on the resources of local planning authorities as well as PINS caused by somewhat of a gold rush.

The Local Government Association raised a concern earlier this year, LGA: call for crackdown on ‘trojan’ telephone boxes amid 900 per cent rise in some areas (27 January 2018).

Councils have been under sustained attack for some time from a variety of, usually pretty anonymous, companies, each with a licence to operate under the electronic communications code, each seeking approval for the erection of a large number of new style telephone kiosks. The main companies include such household names (not) as Maximus Networks Limited, Infocus Public Networks Limited, Euro Payphone Limited and New World Payphones.

Electronic communications code operators benefit from deemed planning permission for the installation of their telephone kiosks under Schedule 2, Part 16, Class A of the Town and Country Planning (General Permitted Development) Order 2015, subject to prior approval by the local planning authority of siting and appearance. Need, or the lack of it, is irrelevant (see for example a decision letter dated 14 November 2017 relating to an appeal in Hackney by Euro Payphone Limited).

Operators then have deemed consent under the Advertisement Regulations for non-illuminated advertisements on the kiosks, but often apply for express consent for illuminated advertisements (see for example a decision letter dated 12 January 2018 in relation to an appeal in Eltham by New World Payphones).

Councils often understandably seek to resist these proposals but it is clearly difficult. The BBC reported last June Westminster City Council’s rejection of 80 proposals by Maximus Networks Limited as well as proposals by other companies:

Councils block ‘ugly and unwanted advert space’ phone boxes.

Whilst the issue has raised concern in local areas and provoked comment, I have not tracked down any recent Parliamentary debate when plainly something is not quite right is it?

This from the ChiswickW4 website about Infocus Public Networks Limited (I haven’t verified its accuracy):

The phone boxes, which are wheelchair accessible, have been rejected by a number of local authorities, and critics say their primary purpose is for the display of advertising rather than making phone calls.

The Warwickshire-based company, Infocus Public Networks Ltd, applied for ‘prior approval’ to site the phone boxes on the pavement at 120, 96, 135 Chiswick High Road (outside Insider Dealings Interior Design , Sainsbury Local, and the former Ballet Rambert) .

Local authorities, including Hammersmith & Fulham, Kensington & Chelsea, and Westminster have all said ‘No’ to the kiosks on grounds of siting and appearance – the only grounds on which a local authority can refuse ‘prior approval’. Councils are not allowed to consider any advertising benefits which may accrue from the phone boxes as they are already the beneficiaries of ‘deemed consent’ from the regulatory body Ofcom.

Infocus, which describes itself as the UK’s third public payphone operator, has challenged a number of local authorities for refusing to allow the phone boxes in their area. An attempt by the company to install fifteen phone boxes in Swindon, which was turned down by Wiltshire council, was partly overturned by the Planning Inspector who ruled that nine phone boxes could be sited in the town streets.

The payphone kiosks use mobile telephony for connection to other networks and the company says there are no invasive pavement works involved. They say the large windows deter the use of the kiosks for antisocial and criminal activity, and that there is still a need for public payphones for tourists, and ethnic minorities and those in wheelchairs.

The old-style kiosks are not allowed to be installed because they do not comply with disability regulations from Ofcom. BT has also removed hundreds of kiosks from UK streets due to the growth of mobile phone use.

Wiltshire Council has asked the government to give local authorities greater powers over the control of advertising on public payphones, following the Inspector’s reversal of its decision, according to the Swindon Advertiser. The City of London also lost its attempt, on appeal, to prevent seven similar boxes in the Lambeth area.

Critics of the scheme say the phone boxes are a lucrative method of attracting commercial advertising to the company which installs them, and are not of any public benefit to disabled users as they take up more pavement surface than traditional kiosks and add to ‘street clutter’.

Incidentally Infocus has possibly the world’s least informative website.

These kiosks are prime advertising space as is clear from Clearchannel’s website.

Do these payphones serve a legitimate function? If they aren’t “for the purpose of the operator’s electronic communications network” the permitted development right doesn’t apply in the first place.And what of some data privacy concerns (according to a piece in Wired, Stop replacing London’s phone boxes with corporate surveillance which might be considered alarmist if we weren’t currently highly sensitised by the Facebook data mining scandal)? Doesn’t the Government need to form a view and quickly? In the meantime these applications and appeals (1,000 appeals!) risk jamming up the system, quite apart from unnecessarily cluttering our streets. Of course PINS needs to do what it can to avoid the problem contaminating its mainstream caseload but why should it be forced to employ external consultants, at taxpayer cost? If ever there were a case for appeal fees!

One of the roles of the PINS board is “ensuring the Planning Inspectorate delivers against its strategic objectives and ensuring sufficient resources are available to achieve those objectives”. A brief scroll through previous minutes of its meetings will demonstrate the level of scrutiny given to every aspect of its performance, although no reference yet to these wretched kiosk appeals! Trudi, you have a crucial role to play in ensuring that resources are correctly prioritised.

Simon Ricketts, 14 April 2018

Personal views, et cetera