A recent high court challenge has considered whether, following the appellant’s request, it was necessary for the Planning Inspectorate (PINS) to hold a hearing prior to PINS’ determination of a planning appeal. Whilst there is no ‘right’ to request a hearing for determination of certain types of planning appeal, PINS will be guided by principles of fairness and proportionality in making their decision. For those seeking a particular procedure for determination of their appeal it will be crucial to make clear and compelling reasons to justify their request, having regard to PINS’ guidance, and to do so at the earliest opportunity.
Determining procedure for a planning appeal
Under section 319A of the Town and Country Planning Act 1990 the Planning Inspectorate (PINS), on behalf of the Secretary of State, decides the procedure to be conducted to determine various planning and enforcement appeals. This can be at a local inquiry, a hearing or on the basis of written representations. PINS has issued guidance on how the most appropriate appeal procedure will be determined, including criteria on the basis of which PINS will form a view. The criteria include consideration of the complexity of the appeal, the need to test the evidence, and the level of local interest in the appeal. The more complex, the greater the need to test evidence and the more local interest in an appeal, the more likely the appeal will be determined following a local inquiry.
When making an appeal the appellant and the LPA are asked to give their view on the most appropriate procedure and support this with reasons. If PINS’ determination differs from the appellant’s or the LPA’s view PINS will give reasons for this. In those circumstances the appellant or the LPA may ask for the decision to be reviewed by a senior officer.
Riza v. Secretary of State for Communities and Local Government
One of the grounds of challenge in the recent high court case of Riza v. Secretary of State for Communities and Local Government1 considered the extent to which a hearing should be held if requested by an appellant. In that case the appellant had indicated that he wished to have a hearing before an Inspector but had provided no explanation as to why. The Inspector determined the appeal using the householder appeals service written representations procedure, noting that the issues raised were straight forward and did not warrant a hearing. The appeal was refused and was challenged on a number of grounds including the failure of the Inspector to hold the requested hearing and because the Inspector made a decision on the basis of the written representations submitted. The written judgment is still awaited but it is already clear that the Court considered the Inspector’s decision not to hold a hearing to be fair and lawful. The Court’s reasoning was that:
- The appellant had been given an opportunity to make representations on why a hearing should have been held but had not done so;
- It was not necessary to give a second opportunity to make representations on why a hearing should be held if the first opportunity had not been taken, notwithstanding the Inspector having decided a different procedure than the one requested;
- The Inspector’s decision letter detailed the reasons for use of an alternative procedure, which related to the criteria set out in the guidance and there was no evidence that the appellant replied to the Inspector’s letter and sought to have the decision on procedure reviewed
3rd Annual Planning Inspectorate Conference
At the 3rd Annual Planning Inspectorate conference held in Bristol on 12 March, practitioners felt that some surprising decisions had been made by PINS on the question of allocation. Concerns were also raised on the willingness of PINS to re-consider their decisions. Practitioners made a request that, where possible, PINS seek the views of the Inspector appointed to determine the appeal before issuing any decision on procedure.
What is clear is that there is no ‘right’ to request a hearing for determination of certain types of planning appeal. However, PINS will be guided by principles of fairness and proportionality in making their decision. So for those seeking a particular procedure for determination of their appeal it will be crucial to make clear and compelling reasons to justify their request, having regard to PINS’ guidance, and to do so at the earliest opportunity.