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Planning by appeal on rise

Applicants say appeals process is faster and more likely to result in approval

The profession is witnessing a return to planning by appeal, according to a raft of anecdotal evidence received by the AJ.

The trend seems to be particularly noticeable in under-resourced planning departments, particularly those in rural areas dealing with large-scale housing schemes. Approvals are also, reportedly, on the rise.

Andy Almond, partner at Pick Everard, said: ‘Applicants are quickly moving to appeal for two reasons. Firstly, they can demonstrate quick delivery of housing and they sense this will currently be supported by the Planning Inspectorate.

‘Secondly, the local planning authority often does not have the skills or resources to put a sufficiently strong case forward.’

He added: ‘There does seem to be evidence that applications for housing on greenfield sites, opposed by the district councils, are being approved at appeal.’

Dave Hughes of Southwark-based Hughes Jones Farrell said cost-cutting within struggling planning departments had also led to an increase in the number of appeals for non-determination.

‘Some planning departments are on the verge of grinding to a halt. Getting feedback or any response can take an extraordinary amount of time compared to before the cuts.

‘Developers still want to secure a negotiated consent, as no one wants the expense of an appeal in today’s climate. But it is getting to the point where the council’s delays end up costing more than an appeal.’

New statistics to back up this reported increase in both appeals and subsequent approvals are not yet available from the Planning Inspectorate. However, figures for the first quarter of 2011 show a rise in approvals on appeal from 30 per cent to 32 per cent over the three months to June.

The emerging National Planning Policy Framework, which is still out for consultation but must now be taken into account by planning inspectors (AJ 07.09.11), also appears to be impacting on the number of appeals being made.

Councils who don’t want to make locally controversial decisions will just refuse them and let the appeal process kick in

In the coming months, the NPPF’s presumption in favour of sustainable development and its implicit drive towards growth could potentially come up against opposing neighbourhood plans.

Nick Lee of planning consultancy of NJL Consulting said: ‘Local councils who don’t want to make locally controversial decisions, even though it is necessary, will just refuse them and let the appeal process kick in.

There are a rising number of situations where officers are recommending approval but members are refusing due to local pressure. This is already happening in Cheshire West, Rossendale and elsewhere. The inevitable appeal rise will occur in such circumstances.’

Last month, Adrian Penfold, head of planning at British Land highlighted similar fears about the NPPF and drew comparison with the boom in appeals seen in the 1980s

He told the Planning Summer School in Swansea: ‘The government is serious about development and growth, and to some extent, this has overtaken the Localism agenda.

‘If the NPPF survives the current maelstrom, it will often provide a basis for applicants to appeal because they believe it offers a route to the approvals they want.’

There’s a perception developers are submitting lots of applications to make use of the policy vacuum

Concerns have also been raised about developers using the supposed ‘planning vacuum’ before the NPPF kicks in, and before local communities have chance to draw up a neighbourhood plan, in order to push through contentious projects. Intriguingly in Westminster there was a 12.5 per cent increase in the number of applications received between the beginning of April and the end of August, compared with the same period last year (2010).

Julie Tanner is chief executive of OPUN, the Architecture Centre for the East Midlands, said: ‘There is certainly a perception that developers are submitting a lot of applications to make use of the policy vacuum in this transition prior to the approval of the NPPF and the Localism Act.’

She said: ‘Rushing developments through the system without due regard to design and the impact of the project, will leave a legacy of poor housing.’

Other comments about the current planning situation:

Russell Curtis, director of RCKa said: ‘If anything, the emerging NPPF appears to be contibuting to even further stagnation of the planning system, with decisions taking even longer than usual. As a result developers are being more cautious about pursuing opportunities given the increased level of uncertainty and the confusion over levels of the Community Infrastructure Levy.
‘Coupled with the downsizing of planning departments as a result of local authority cutbacks we can’t see things improving for the foreseeable future.’

Graham Bizley, of Prewett Bizley, said: ‘A council is not bound to follow national policy directives – that is just party politics.  The problem would seem to be that authorities do not have enough planning officers to give sufficient time to applications and many of the ones they do have perhaps lack the skills to counter tough developers. 
‘If planners were trained with a better design sense and planning were more proactive they might be able to lead development rather than fire fighting with insufficient resources.  The tories can’t have it both ways and will hopefully have to rethink their planning policy proposals.

Andy Puncher, of pH+, said: ‘We recently developed a design for five detached houses on a greenfield site. It was recommended for approval by Three Rivers Planning Department, with the application going in front of their development committee in July 2011 where it was deferred, to be reconsidered after a site visit in August 2011.
‘The scheme was discussed at length with a motion by a minority of the committee members put forward to reject the officer’s recommendation for approval, arguing over development. The government’s emerging guidelines in relation to a ‘presumption in favour of sustainable development’ were then discussed and the motion overruled on the basis that the scheme complied with all relevant planning legislation and was in line with the Local Development Framework. The application was subsequently granted approval.
We found this interesting in a Borough where previously development was restricted under a development moratorium of nine units, regardless of site area and context.

Steven Bee, of Urban Counsel, said: ‘Ministerial statements asserting that the planning process has become over-complicated may attract some industry support, but that doesn’t mean that the circumstances which it has to manage are not complex. It is simplistic to suggest that the process can be made better by simply simplifying the policy that informs it.  
The planning and development processes that have evolved in England over the last century provide a level of consistency and certainty on which both communities and the development industry depend. The uneasy and reluctant symbiosis through which the various interests engage has to be maintained in as stable a state as possible by local planning authorities.
They have been recognised by all as under-resourced for some time. They are now accused not just as enemies of enterprise, but of over-complicating something that is essentially simple - Andrew Stunnell’s stunningly simplistic ‘it’s not brain surgery’ comment at the Lib Dem’s conference).  Local Planning Authorities should certainly act in the best interests of their community, and not all can demonstrate this at present.  But we need a reliable and consistent definition of community as well as sustainable development.  The community of interest may be more or less local depending on the issue.  That’s why we need national as well as local planning policies, and why the Government should not be hell-bent on cutting both. However many words are cut from planning policy documents, this will not reduce the number used by those acting for and against development in planning appeals.’

 

 

 

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