Let Me Count The Ways

How unromantic. To my disappointment, that line from Elizabeth Browning’s poem is not followed by a list of the differences between the section 247 and 257 procedures for stopping up highways.

I need to fill that gap.

After all, the process for stopping up highways in order to enable development to be carried out is a vital corner of our planning system that is particularly dysfunctional and lacking in logic. Perhaps because the process largely comes after the decision as to whether the development itself is to be approved, there is too little focus on whether it is working effectively. The last material change to the procedure was the limited, but welcome, amendment made by way of the Growth and Infrastructure Act 2013, which at least allowed it to commence prior to planning permission being granted.

Section 247 (1) of the Town and Country Planning Act 1990 provides that “the Secretary of State may by order authorise the stopping up or diversion of any highway outside Greater London if he is satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission...”

The procedure covers all types of highway.

Section 257 (1) of the Town and Country Planning Act 1990 provides that “[s]ubject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath, bridleway or restricted byway if they are satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission…”

The procedure just covers footpaths, bridleways and restricted byways.

The substantive test in relation to both processes is whether the stopping up is “necessary” in order to enable the development to proceed and whether stopping up is in the public interest. However, they are administered in very different ways (and the section 247 process is different in London).

(Outside London) a section 247 application is made by the developer to the Secretary of State for Transport, and is administered by the Department for Transport’s National Transport Casework Team in Newcastle. The casework team’s guidance indicates that the “Department aims to process Orders where there are no objections within 13 weeks from receipt of all necessary information.”

If there are objections following publicity for the application, the Secretary of State considers in his discretion whether an inquiry is to be held. If an inquiry is to be held, there are no procedural rules which govern the process. The inspector is appointed by the DfT and reports to the Secretary of State for Transport, who makes the final decision.

(In London, section 247 order applications are made by the developer to the relevant borough.

If objections are received and cannot be resolved, the application is referred to the Mayor of London, who either decides that under section 252 (5A) that “in the special circumstances of the case” an inquiry is unnecessary, in which case the borough may confirm the order, or that inquiry is necessary, in which case the borough must cause an inquiry to be held.)

A section 257 application is made by the developer to the local planning authority, following the form set out in the Town and Country Planning (Public Path Orders) Regulations 1993. If there are objections following publicity for the application, section 259 and schedule 14 of the Town and Country Planning Act 1990 require that the application must be referred by the local planning authority to the Secretary of State for Environment, Food and Rural Affairs (although in practice by way of reference to the Planning Inspectorate’s rights of way section).

Unlike with opposed section 247 order applications, there are procedural rules that govern the determination of opposed section 257 order applications, namely the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 and there is also procedural guidance published by the Planning Inspectorate.

Unless each objector indicates that he or she doesn’t wish to be heard in front of an inspector, PINS will either arrange a hearing or a public inquiry. There are set timescales for the relevant stages. For a hearing, each party wishing to give evidence must provide a statement of case within 12 weeks of the start date. The hearing should generally take place within 20 weeks of the start date. For an inquiry, the parties must provide their statements of case within 14 weeks of the start date and proofs of evidence must then be provided at least four weeks before the start of the inquiry, which should generally be not later than 26 weeks after the start date.

Not only is it odd that the Planning Inspectorate has no discretion to decide that an opposed application be determined by written representations unless all objectors agree (contrast with section 247 but also with the powerless position of an appellant in relation to a section 78 appeal) but these timescales are way out of kilter with modern, post Rosewell, inquiry timescales, where statements of case are due within five weeks of the start date and the inquiry will generally be within 13 to 16 weeks of the start date.

There is a further sting in the tail: The Planning Inspectorate’s procedural guidance warns:

Having received an order from a local authority, we aim to issue the notice containing the ‘start date’ to all the parties within 10 weeks.”

Ten weeks! That is often by definition ten additional weeks on the post permission, pre construction, timeline for a project.

So a section 257 order is likely to take around 36 weeks to get to inquiry…

The only good news is that (another difference between section 247 and 257 orders), the inspector can make the final decision in relation to section 257, so there is no further delay caused by waiting for the Secretary of State to consider his or her report.

In conclusion, there are unjustified differences between what should be very similar processes:

⁃ No overall statutory procedural framework (no procedural rules in relation to section 247; out of date procedural rules in relation to section 257, in terms of leisurely time limits and limited scope for determining that a written representations procedure is adequate)

⁃ No single decision-maker (two different Secretaries of State – and in London the Mayor’s role in relation to section 247 – and section 257 decisions are taken by the relevant inspector rather than needing to be referred to the Secretary of State).

⁃ No single body administering the process (DfT National Transport Casework Team vs Planning Inspectorate rights of way section).

In relation to both processes I would go further: As long as there are appropriate safeguards for those affected and with suitable requirements as to consultation and publicity, surely a local planning authority, at the same time as determining any planning application for development, should be able to approve any highways closures that are required in order for that development to be carried out? Otherwise, the issues are artificially divided, in a way that is particularly confusing for objectors, between two processes (planning and stopping up) which still have to run largely one after the other?

How do I love thee (sections 247 and 257)? Let me count the ways (not).

Simon Ricketts, 15 February 2020

Personal views, et cetera

Secretary Of State Throws Another Curve Ball

My 15 June 2019 blog post National Lottery: 2 Problematic Recovered Appeal Decisions focused on two appeals dismissed by the Secretary of State against inspectors’ recommendations.

Well, here is another one, in relation to the Chiswick Curve scheme on the Great West Road within the London Borough of Hounslow, the 19 July 2019 decision letter out just before Parliament rises on 25 July (by which date we will have a new prime minister). Another long inquiry (15 days), long delays (the initial application was made over three and a half years ago, the inquiry was a year ago), detailed analysis from an experienced inspector who had heard the evidence and seen the site first hand, ultimately counting for nothing.

The Secretary of State’s decision followed an inquiry held by inspector Paul Griffiths BSc(Hons) BArch IHBC, into appeals by Starbones Limited against the decisions of the London Borough of Hounslow to (i) refuse planning permission for a mixed use building of one part 32 storey and one part 25 storeys comprising up to 327 residential units, office and retail/restaurant uses, basement car and bicycle parking, residential amenities, hard and soft landscaping and advertising consent with all necessary ancillary and enabling works and (ii) refuse to grant advertising consent for 3x digital billboards. The applications were dated 11 December 2015 and amended in October 2016.

The differences of judgment as between the inspector and Secretary of State appeared to boil down to the following:

⁃ The Inspector considered “that the proposal would bring a massive uplift to the area around it” and would be in accordance with various local plan policies. “While the Secretary of State recognises that public realm improvements and the publicly accessible elements of the scheme…do offer some improvement to current conditions, in terms of accessibility and movement, he does not agree that this constitutes the massive uplift as described by the Inspector.

⁃ Both agreed that the harm to designated heritage assets (the Strand on the Green Conservation Area plus its listed buildings; Kew Green Conservation Area plus its listed buildings; Gunnersbury Park Conservation area plus its listed buildings and Registered Park and Garden, and the Royal Botanic Gardens Kew World Heritage Site plus its listed buildings) would be less than substantial but the Secretary of State disagreed with the inspector’s finding that the public benefits of the proposals would be sufficient to outweigh the harm.

⁃ The Secretary of State disagreed with the Inspector that there would be no conflict with a local plan policy concerning the impact of tall buildings proposed in sensitive locations such as conservation areas, listed buildings and their settings, and World Heritage Sites.

⁃ Accordingly the Secretary of State disagreed with the Inspector and found that the proposals did not comply with the development plan when read as a whole.

⁃ The Secretary of State “considers that the site has a strategic location, and he recognises the constraints and challenges associated with it. While he agrees with the Inspector […] that the proposed design seeks to respond to those challenges in a positive way, he does not find the proposal to be of such high quality as to be a brilliant response to its immediate context. He finds the scale and massing of the proposal to be such that the proposal does not relate to its immediate surrounding. While he recognises that attempts to minimise this impact have been taken with regard to glazing and fins, the building would still dominate the surrounding area. He considers the design to be a thoughtful attempt to respond to the challenges and opportunities of the site, but due to its scale, he disagrees with the Inspector […] that it is a significant benefit of the scheme.”

⁃ The Secretary of State considered that the proposals “would not provide the levels of private and communal amenity space that [the relevant local plan policy] requires. While he has found this to be a limited departure from this policy, the Secretary of State also recognises that the on-site provision, supplemented by the relative proximity of Gunnersbury Park does reduce the weight to be attached to this conflict.”

⁃ Given his finding that the proposals would not be in accordance with the development plan he went on to consider whether whether there were any material considerations to indicate that the proposals should be determined other than in accordance with the development plan. After a detailed analysis in paragraphs 34 to 38 of the decision letter, he concludes:

Overall, the Secretary of State disagrees with the Inspector […], and finds that the moderate weight to be attached to the benefits of the appeal scheme in terms of housing provision, workspace provision and economic benefits, are not collectively sufficient to outweigh the great weight attached to the identified ‘less than substantial’ harm to the significance of the above heritage assets. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.

Local MPs Ruth Cadbury (Labour) and Zac Goldsmith (Conservative) were recorded as having objected to the proposal. The objectors appearing at the inquiry included Historic England, the Royal Botanic Gardens Kew and the Kew Society (the first two instructing Richard Harwood QC and James Maurici QC respectively). Russell Harris QC and Richard Ground QC appeared for the appellant and for the London Borough of Hounslow respectively.

I note that on 19 July 2019, the Secretary of State also refused, against his inspector’s recommendation, Veolia’s called in application for planning permission for an energy recovery facility in Ratty’s Lane, Hoddesdon, Hertfordshire.

The Secretary of State accepted that there is an “urgent and pressing need” for the facility, that there is “no obvious alternative site”. “Given the urgent and pressing need, the Secretary of State considers that the provision of an ERF with sufficient capacity to accommodate the waste demands of the county carries substantial weight in favour of the proposal, and the climate change benefits of the proposal also carry substantial weight”. However, he considered that in view of the fact that the proposal was contrary to the development plan and there were unresolved concerns over highways matters, together with “significant adverse landscape and visual impacts”, the application should be refused. I thought that “need” means “need” but there we go.

Not much getting past this Secretary of State is there? An inference of his recent letter to the Planning Inspectorate (see my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism) might be that he considers that inspectors may on occasion be too robust in their examination of local plans and yet an inference of his approach on recovered appeals and call-ins might be that he considers that on occasion inspectors are not robust enough in assessing development proposals that are before them at inquiry. For my part, neither inference would be justified.

Simon Ricketts, 20 July 2019

Personal views, et cetera

Less Than Best Laid Plans: Political Pragmatism

The Secretary of State sent a curious letter to the Planning Inspectorate on 18 June 2019, which was only placed on the Government’s website on 28 June 2019. (The delay may have been to allow PINS to update its procedure guide for local plan examinations).

It is in two parts:

Sharing information with MHCLG

The Secretary of State reminds inspectors and local authorities that Parliament has given him “a number of powers that, where justified, allow [him] to become involved in plan making. This includes powers to notify or direct the Inspectorate to take certain steps in relation to the examination of the plan or to intervene to direct modification of the plan or that it is submitted to [him] for approval”. He states that he is “frequently asked by those affected by the plan making process to consider use of these powers and must look at each of these requests on a case by case basis. This includes requests from Members of Parliament, who have a legitimate interest in the progress of local plans in their areas and are accountable to their electorates. I am pleased that the Planning Inspectorate’s published Procedural Practice encourages MPs to participate in the examination hearing sessions even if they did not make a representation and I would encourage their involvement in this way”.

He considers that more can be done by way of sharing of factual information so that his officials can advise him as to whether use of his powers would be appropriate.

He sets out two changes to the arrangements for sharing of information between MHCLG and PINS with immediate effect:

1. On a quarterly basis the Planning Inspectorate will publish a report that sets out the plans that are expected to be submitted for examination in the following 6-month period. I ask that this report be published on the Planning Inspectorate website. Clearly this can only be as good as the information received from local authorities, and I am arranging for this to be drawn to the attention of local authorities to remind them of the importance of giving clear timetables;

2. The Planning Inspectorate will share all post-hearing advice letters, letters containing interim findings, and any other letters which raise soundness or significant legal compliance issues, as well as fact check reports, with my department on a for information basis, at least 48 hours in advance of them being sent to the Local Planning Authority

In relation to the second change, can I ask that we have on one website each of these documents as soon as they can be made public. There is a fundamental lack of transparency in the ad hoc way that this information is currently made available only on the relevant examination page of the particular local authority’s website, meaning that ensuring consistencies of approach, reviewing trends and learning from similar circumstances is currently very difficult indeed.

And what local plans have escaped to adoption before the relevant MP could ask the Secretary of State to apply the knife? Local Plan Intervention: a question of MP influence published by the House of Commons Library in July 2017 summarises the four times since the 2012 NPPF (to July 2017) when the Secretary of State had used his powers of intervention: Bradford, Birmingham, Maldon and North Somerset. In all but Maldon the intervention was at the request of an MP. I note that the MPs’ interventions only achieved delay to eventual adoption of the plan, whereas the call in of the Maldon plan was in circumstances where an inspector had found that the whole plan was unsound, due to its policies on traveller provision, the council’s chief executive successfully sought call in of the plan and the plan was eventually adopted.

Aside from the Secretary of State’s sabre rattling in relation to authorities that have not made sufficient progress with their plans, which I will come to in a moment, what interventions have there been since July 2017? Do we discern a continuing trend? Wouldn’t it be nice to have the information in one place so that potentially straight-forward questions such as that could be resolved. Is MPs’ interest more often in the “progress of local plans in their areas” or is it in being seen to be pressing in relation to those issues of most concern to their electorate eg retention of green belt and/or opposition to housing?

In fact, as I was typing this, in pinged a Planning magazine online update High Court allows legal challenge to Guildford local plan to proceed to full hearing (12 July 2019, behind paywall):

In May, Sir Paul Beresford, the Conservative MP for Mole Valley, wrote to several Guildford councillors expressing outrage at the “astonishing way” the plan had been adopted in the purdah period before local elections.”

Another Conservative MP on the “anti-housing in the Green Belt” campaign trail. Was this local plan perhaps “the one that got away” as far as MHCLG is concerned?

So how has the more general sabre rattling, in relation to delays in plan preparation, been going? My 18 November 2017 blog post Local Plan Interventions referred to the 31 January 2018 deadline given to 15 local authorities to set out any exceptional circumstances as to why they had failed to produce a local plan, to justify the Secretary of State not intervening in their local plan processes.

On 23 March 2018 the Secretary of State made a statement to the House of Commons, indicating that his attention had narrowed to three authorities: Castle Point, Thanet and Wirral:

In three areas, Castle Point, Thanet and Wirral, I am now particularly concerned at the consistent failure and lack of progress to get a plan in place and have not been persuaded by the exceptional circumstances set out by the council or the proposals they have put forward to get a plan in place. We will therefore step up the intervention process in these three areas. I will be sending a team of planning experts, led by the Government’s Chief Planner, into these three areas to advise me on the next steps in my intervention.

I have a number of intervention options available to me which I will now actively examine. As it may prove necessary to take over plan production, subject to decisions taken after the expert advice I have commissioned, my Department has started the procurement process to secure planning consultants and specialists to undertake that work so it can commence as quickly as possible. My Department will also be speaking to the county councils and combined authority with a view to inviting those bodies to prepare the local plan in these three areas as well as exploring the possibility with neighbouring authorities of directing the preparation of joint plans

Tough talk but it then took another ten months before intervention letters were finally sent to Wirral and Thanet on 28 January 2019.

The position in Castle Point is a mystery to me. Councillors voted down a proposed draft of the plan in December 2018. The council’s website simply says this:

A Special Council Meeting was held in November 2018, whereby the Council resolved to not proceed with the Pre-Publication Local Plan. As a result of this meeting the Council are in discussions with the Minstry of Housing, Communities and Local Government in regards to the next steps. “

But no intervention letter yet.

Sadly, if I worked for an authority I would presently be more concerned about the risk of the Secretary of State intervening in relation to a plan that has passed its examination and is about to be adopted than the risk of his intervening due to the lack of a plan in the first place or due to the authority’s withdrawal of a draft plan. We are seeing various authorities taking decisions to withdraw their submitted plans (for example East Cambridgeshire and Amber Valley) because they find the inspector’s findings, usually seeking further development allocations or additional housing numbers, unpalatable and there is still such slow progress on the part of many authorities. Surely this is the scourge – not plans which are within a process that has been refined by independent examination, the outcome of which happens to contradict the views of an MP, now encouraged to participate in hearing sessions “even if they did not make a representation”? In any world other than one in which backbench MPs have to be pacified, isn’t this madness?

The importance of being pragmatic

On the subject of pragmatism…

The second part of the Secretary of State’s 18 July letter comprises this final paragraph which I have already seen trotted out at an examination by one authority seeking to paper over the cracks:

Finally, on the substance of plan examinations, I wanted to stress to inspectors – who are doing a challenging job – the importance of being pragmatic in getting plans in place that, in line with paragraph 35 of the NPPF, represent a sound plan for the authority and consistent in how they deal with different authorities. We support and expect Inspectors to work with LPAs to achieve a sound plan, including by recommending constructive main modifications in line with national policy. In this regard, I would reiterate the views set out by the Rt Hon Greg Clark MP in his 2015 letter which I attach, on the need to work pragmatically with councils towards achieving a sound plan.”

I have since been trying to find an example of a local plan inspector in the last few years who has not been pragmatic in seeking to rescue a plan by way of main modifications rather than recommending withdrawal – and indeed the 2013/2014 spate of plans that failed examination were down to hard-edged legal failings in relation to the duty to cooperate.

Inspectors routinely allow pretty significant changes by way of main modifications, and general evidential backfilling, rather than recommend withdrawal. They routinely accept unenforceable assurances from the authority that the authority will carry out an early review – but at best “early” never means early and, at worst, as last week with the Reigate and Banstead plan, the authority’s (judge in its own cause) “review” determines that changes to the plan are not after all necessary!

So what is this paragraph getting at? If the Secretary of State were to be saying that inspectors should not be checking that legal requirements (eg the duty to cooperate and the need for adequate sustainability and habitats appraisals) have been met or that the plan meets the soundness test in NPPF, that would surely be wholly inappropriate. And shouldn’t we be protecting the independence of the Planning Inspectorate? Formal guidance is one thing, but “go easy” warning letters such as this surely just make an inspector’s task even more challenging.

Imagine equivalent guidance being given to appeal inspectors! Oh yes, bend over backwards to give the appellant time to amend elements of his scheme, overlook policy inconsistencies, fudge the approach to later phases of the development because the appellant has agreed, outside any enforceable timescale, to carry out an “early review” of those aspects. Doesn’t ring true, does it?

Simon Ricketts, 13 July 2019

Personal views, et cetera

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