Tag: written representations

Planning Appeal Procedure Myth Busting: Statistics Do Not Show Hearings Procedure To Be Inherently More Advantageous For Appellants Than Written Representations

I’ve seen that planning lawyers and other planning advisers are increasingly tempted to roll out statistics as to likely appeal outcomes as part of the advice being given by clients. By and large, it’s good, I often do it myself.

But I do wonder whether sometimes it is too easy to get misled by the numbers without digging a little bit further. Damned statistics and all that. This post just looks at one truism that I’m increasingly sceptical about: that for an appellant it is better for your appeal to be determined by way of hearing rather than written representations because the statistics demonstrate a higher success rate.

Appeal Finder do some great tables like this one:

Who wouldn’t look at this and draw an obvious conclusion?

But let’s dig a little deeper. This is an Appeal Finder table which breaks down the percentage of appeals allowed by type of development:

A couple of interesting themes start to take shape:

  • Major dwellings appeals (I assume 10+ dwellings) have a significantly greater success rate than commercial appeals – perhaps unsurprising given the positive national policy climate for residential development (look at the increase since 2023/2024), although perhaps that “commercial appeals” basket may also include some appeals for minor works which have not had the level of professional input and attention as more major schemes in terms of (1) whether to appeal in the first place and (2) a proper evidence-based articulation of the case.
  • Major dwellings appeals have an even greater success rate than minor dwellings appeals – my points (1) and (2) above, surely.

In fact, my proposition is that your prospects of success as an appellant are not particularly down to whether the appeal is determined by way of written representations or by way of hearing (I’m leaving the question of inquiries out of this – maybe I’ll compare hearings and inquiries in a future post). What is more influential is whether the scale of the scheme is such that there has been that professional input. My points (1) and (2).

You can see the position more clearly if you start to break down dwellings appeals as between schemes for 50 dwellings or more and schemes for fewer than 50 homes.

Smaller schemes are less likely to be approved on appeal than larger schemes, regardless of procedure.

I’m very grateful to my colleague Adam Choudhury for producing some tables from the Compass website, looking at appeals determined since the December 2024 NPPF until this month’s version.

With schemes for fewer than 50 dwellings, a circa 29% success rate for written representations appeals plays circa 40% for hearings. A difference but not huge, bearing in mind that many of those written representations appeals will have been at very much the lower end of the scale and made without any initial professional advice as to prospects of success (i.e. hopeless from the start) and/or not assisted by professional representation.

With schemes for 50 dwellings or more the success rate is completely different, a circa 62% success rate for written representations appeals plays circa 70% for hearings. Yes, still a distinction but the huge distinction is with the earlier table. For written representations appeals 62% plays circa 29%. The vast majority of written representations appeals are for those smaller schemes, of fewer than 50 dwellings (1,959 over the period as opposed to 63 for schemes of 50 dwellings or more), which makes it so misleading for anyone to point to anything like the first table in this post as a reason not to go down the written representations route!

Given that with the streamlined procedures now in place for written representations appeals resulting from applications submitted from 1 April 2026 (see my 15 February 2026 blog post Don’t Be An April Fool: Written Reps Planning Appeals Are About To Get Faster But Also Riskier ), there’s a risk that appellants miss out on faster decision making simply through fear that there is an inherent material disadvantage in proposing, or being allocated, the written representations route. I wonder whether advisers and advocates in relying on the overall stats are really in part backing up a “gut feel” that (1) if only they can eyeball the inspector and address him or her face to face they will inevitably improve the appellant’s prospects and/or that (2) a written representations appeal may be determined by a less experienced inspector and/or one paying less attention to the submitted detail. The small delta in percentage prospects of success for similar schemes via the two processes does, I suggest, cast doubt as to whether these are in fact significant factors and that the most important question is which is the procedure that most sensibly is going to give the inspector the necessary understanding of the appellant’s case, which after all is by definition a case based on written documents, drawings and an understanding of the site and surroundings.

(With the new written representations procedure I know there is also a great fear out there amongst appellant teams about the restriction on introducing new material at the appeal stage. In my view the challenge this creates in terms of needing to ensure that your application is “appeal ready” is usually outweighed by the benefits of a faster simpler process without the LPA and third parties able to backfill their case but that’s a topic for another day).

If I have gone any way at all to bust this myth about written representations appeals, I do think there is another much more uncomfortable myth to be busted: that we have a quasi -judicial, rational, development management system such that any inspector is usually likely to reach the same determination in relation to any particular case. The larger the scheme the clearer it is to me that this is not the case,  for an obvious reason: a large element of the decision-making process involves determining how much weight to give to various material considerations, without prescriptive national guidance on calibration. I tried to address this in my 9 February 2024 blog post The Weighting Game. The new NPPF is more prescriptive, more rule-based, but inevitably a huge amount is still left to that black box we call “planning judgment” and that inevitably brings an element of our personal values to the table, however sub-consciously, in the balance of, for instance, heritage, economy, social issues, climate. Appeal Finder have a table identifying each planning inspector’s record in terms of his or her decision making. Whilst again we need to distinguish causation and correlation (a leading surgeon may have fewer successful patient outcomes than a surgeon doing less challenging cases), it always feels uncomfortable to me (on behalf of the client sitting next to me and in fact on behalf of the whole system that we all in some way serve) when the KC’s advice on appeal prospects is along the lines of between x and y % but dependent on knowing which inspector is appointed because for instance if it is going to be Mr or Ms A this is going to be very difficult but if it is going to be Mr or Ms B we stand a much better prospect. The client then asks “What can we do if we get Mr or Ms A?” and we all shrug our shoulders just like that emoji.

I would welcome your thoughts. All this seems to me to be pretty important to the roles that we all play in guiding clients through an uncertain, opaque system, and to how we make it clearer and more certain.

And on that theme…

I was so proud this week to see two initiatives by Town Legal colleagues come to fruition.

First, MHCLG’s consultation on Standard planning agreements for medium-sized sites (25 August 2026), with a series of proposed standard templates for section 106 agreements and unilateral undertakings in relation to residential developments of between 10 and 49 homes and up to 2.5 hectares.  These initial templates comprise draft standard clauses, schedules for financial contributions, councils’ covenants and affordable housing schedules, including a discretionary cascade mechanism (to be used where authorities consider appropriate) in the case of full permissions.  Meeta Kaur has led a large Town Legal team in this work for the Planning Advisory Service. We invite and encourage everyone to respond to the consultation process, by MHCLG’s 11:59 20 October deadline.

Secondly, a brilliant new podcast series on future facilities for women’s football, Built For Her Game, featuring Town Legal’s Victoria McKeegan alongside Sarah Rock (Boodle Hatfield), and Rebecca Burnhams (Quod). The first two, short and snappy, episodes are out now. The second episode is the first of a series of interviews with leaders in the sector, this first being Sue Day, director of women’s football at the Football Association. No mentions so far of the NPPF or of appeals or of anything at all like that. What not to like?

Simon Ricketts., 29 August 2026

Personal views, et cetera

[Image from Wikipedia of the classic visualisation of survivorship bias in statistics: It shows the hypothetical pattern of damage sustained by an aircraft that returned from combat. Reinforcing aircraft just in these areas would overlook the question of where non-surviving planes had been struck, fatally].

How Do You Solve A Problem Like…Speeding Up Planning Appeals Without Being Unfair Or Counter Productive?

One of Rodgers and Hammerstein’s best.

MHCLG and the Planning Inspectorate this week announced that they would be imposing additional discipline on the parties to planning appeals which proceed by way of written representations. Regulations are to be introduced, to come into effect by the end of 2025, which will (according to accompanying detailed guidance):

  • expand the use of the simplified written representations procedure currently used for householder and minor commercial appeals (“part 1 appeals”) so that it will also apply to appeals in relation to the refusal of planning permission or reserved matters, the imposition of conditions on approvals and the refusal of prior notification or prior approval.
  • retain the six months’ appeal time limit for these appeals and allow PINS to transfer an appeal to the traditional written representations process where the simplified process “is not best suited for handling the appeal”.
  • not permit any further documents to be submitted by an appellant with their appeal beyond a copy of their application, the local planning authority’s decision notice and “a brief statement responding to the LPA’s decision and why they disagree.”
  • not permit an appeal statement or any other comments to be submitted by the local planning authority other than a copy of the information that they considered when deciding the application. “If members overturn an officer recommendation at committee, it’s important that meeting minutes and refusal reasons are robust and fully address any issues. LPAs should update their notification templates to communicate that any comments made by interested parties at the application stage will be shared with the Planning Inspectorate in the event of a part 1 appeal and that they cannot comment on the appeal.”
  • not permit any comments by third parties (although representations made during the application process will be made available to PINS by the local planning authority).

The procedure will apply to appeals in relation to applications submitted after the new system comes into force.

If this results in a crisper appeal process, without any loss of quality, there is much to like here, although care will be needed:

  • This makes it all the more important that applications when submitted are “appeal ready”, particularly as there is always a risk that the local planning authority may not allow amendments or additions to the application documentation to be submitted during the application process.
  • Local planning authorities’ reasons for refusal will need to carefully considered – and the reasoning within officers’ reports.
  • Third parties will also need to be careful to make their views known at application stage, without the ability to supplement them subsequently.
  • It seems that scope will be lost for parties to narrow down the points at issue during the appeal process.
  • The Planning Inspectorate recently changed its guidance to require completed section 106 agreements and unilateral undertakings to be provided when the appeal is lodged. The expansion of the simplified written representations procedure will make it even more important that the completed document has been agreed with the local planning authority and is robust.
  • There is usually uncertainty, when an appeal is lodged, as to what procedure the Planning Inspectorate will adopt: inquiry, hearing or written representations. What where the appellant is seeking an inquiry or hearing but the Planning Inspectorate determines written representations to be appropriate? That is already procedurally problematic (for instance when an inquiry is sought and the appellant ends up with a hearing).

Of course, some muscularity is needed on the part of the Planning Inspectorate to ensure that appeal timescales continue to reduce. That has been a successful aspect of the reforms to inquiry procedure, for instance as to the setting of dates for inquiries where we no longer have such a merry dance driven by counsel availability. But there are dangers, as demonstrated by this week’s ruling by the High Court in Tiwana Construction Limited v Secretary of State (Eyre J, 24 June 2025).

This related to a hearing into an appeal against West Suffolk District Council’s proposed development of 10 self-build houses in Burwell. As a result of comments by the inspector at the hearing, the appellant decided to submit a section 106 agreement committing to the provision of three of the dwellings as affordable housing. The inspector gave a deadline for submission of a completed section 106 agreement, and then extended it, but due to complications it could not complete an agreement by the inspector’s extended deadline and instead submitted a completed section 106 unilateral undertaking together with a note from the appellant’s solicitors setting out why it should be taken into account and was satisfactory but that an agreement would take longer.

The judgment makes interesting reading, showing that by the deadline the inspector had already prepared a draft decision letter, with a draft conclusion that the appeal should be dismissed. The judgment is revealing as to the correspondence that then ensued within the Planning Inspectorate between the inspector and her professional lead. The inspector was minded not to take into account the unilateral undertaking because she had some concerns about the drafting and she had been told she would be receiving an agreement rather than an undertaking and that a further extension would be needed for completion of an agreement. The inspector gave a written statement to the court hearing: “The Professional Lead advised me that as I was already going to dismiss the appeal for other reasons and the Claimant had not met my deadline for the provision of a S106 agreement, I should side-step the issue of affordable housing in my Decision Letter because it was not a determining factor in my decision…”

The Planning Inspectorate refused the request for a further extension (“This extension for the agreement has been rejected by the inspector. The inspector gave a deadline and was accommodating by agreeing to an extension. The agreement was not submitted in accordance with that extended deadline, so she will make her decision accordingly“) and the inspector then duly dismissed the appeal.

The decision was quashed:

“The position can be stated shortly. The Inspector made a deliberate decision to side-step the question of affordable housing in the Decision Letter. She took, therefore, a deliberate decision not to explain either why she was not taking the proffered affordable housing into account as a positive factor in favour of the appeal nor why she had no regard to the Unilateral Undertaking. This was not the result of inadvertence or of reasons being expressed in a clumsy or abbreviated form. It was a choice deliberately made by the Inspector. It had the effect that the Claimant was not given even the briefest of explanations as to why the affordable housing, for which the Unilateral Undertaking made provision, had not been taken into account. There was a failure to provide the reasons for the decision on a contentious matter of importance.”

Furthermore, “provision of affordable housing was obviously a matter of weight in the planning balance in this case. It was, therefore, to be taken into account even though doing so might not have changed the ultimate outcome.”

“It is at least possible that if the Inspector had considered the Unilateral Undertaking and had taken account of that provision she would have increased the weight she attached to affordable housing as a positive factor in favour of the appeal. It cannot, therefore, be said that the outcome would necessarily have been the same and relief is not to be refused on that basis.“

I’m sure we all have these procedural dilemmas on appeals from time to time. Completing the section 106 agreement or unilateral undertaking may be taking more time than anticipated for reasons outside the parties’ control, or further evidence comes to light which the inspector is refusing to receive. How far do we push it? This judgment repays careful reading.

Until next week, So Long, Farewell…

Simon Ricketts, 28 June 2025

Personal views, et cetera