The appeal process Q & A DCP Section 5.3

Q & A    5.3/10

I need a local authority to release an internal document to a forthcoming inquiry. I am aware that this contains material pertinent to the case, but am meeting resistance. Can the local authority be compelled to make this evidence available?

This question arose in a 1999 appeal case from Swindon where an inspector was requested to seek the release of internal memoranda which involved officer's consideration of the employment land matters involved in the inquiry. The inspector reasoned that as it was public knowledge that the material existed and it was relevant to one of the central issues to be considered, the council should be requested to reconsider its release. This request was complied with. In addition it is possible to instigate court proceedings on the basis that the memorandum is a material consideration to a consideration of the inquiry and should be produced in the interest of natural justice and freedom of information. This can be a relatively costly and time consuming exercise and needs to be balanced against the potential benefits. However the threat of such action may provide some leverage in attempting to secure the information by agreement.

Response

The easy way to secure this, if threats under the Local Government (Access to Information) Act have not worked, is to apply to The Planning Inspectorate for a witness subpoena naming the officer who has the memorandum in his or her possession, and explaining that it is a material consideration that the inspector would require to see.  I would like to think that most reasonable local authorities would, on the receipt of a request by the Inspectorate, immediately release the document concerned. Failing this, if a subpoena is issued, the officer can be put on oath at the Inquiry in order that he or she may be cross-examined as to the content of the document.

To what extent can an inspector raise new issues, if at all, in determining a planning appeal, where these have not been raised by either the planning authority or the appellant?

The current Procedure Rules dealing with inquiries and hearings state that if when determining an appeal an inspector intends to take into consideration any new evidence or any new matter of fact not raised at the inquiry he or she shall notify the parties inviting any further representations. There has been extensive litigation involving the contention that an inspector has breached the rules of natural justice by introducing new matters. The courts normally support such an argument but will not find injustice if it is clear that a decision would have been the same anyway. They have also been prepared to give some latitude to the introduction of matters derived from an inspector's own technical or professional knowledge which have been employed when framing a decision letter.

My client has instructed me to appeal against a condition which required the applicant to supply the local planning authority with various design details for approval before the commencement of a proposed development. As my client was in a hurry, he not only complied with the condition but also agreed to the design required by the local authority. On reflection he is unhappy with the resultant development and is looking to change it. While the six month period for making an appeal has not yet expired I am concerned that the right to do so has been lost as the scheme has now been implemented.

First and foremost your client has the right to appeal within six months, whether or not the permission has been implemented. In this particular situation, however, it would appear that the condition merely requested that details be submitted and approved before the development was commenced, which is a fairly standard and reasonable condition. It now seems that your client is not so much unhappy with the condition but with the design he put forward. If the planning authority are not prepared to accept an amended design, he should submit a formal planning application seeking variation. If this is not acceptable to the local planning authority the appeal route is then available.

In all this it is as well to be aware that if a condition is appealed, the inspectorate have the power to review all the other conditions applied to a particular planning permission, which may not be to the overall advantage of an appellant.

An applicant appeals against non-determination and submits a revised proposal, supposedly meeting objections to the first application.  In the meantime, the planning authority resolves that it would have refused the original proposal. The applicant's solicitors suggest that the appeal should not be processed until the authority has determined the second application.  I think that it would be fairer to decide the appeal first.  What does legal precedent say about this?

While I have been unable to find a case that might throw some light on this matter, in my view the appellant is entitled to a decision on the second application, regardless of whether an appeal has been lodged against the first. It would obviously be a considerable waste of everyone’s time and money to pursue an appeal against the original proposal where there is a reasonable prospect that the second will succeed and, in that event, the developer has indicated an intention to withdraw the appeal. Thus, in my experience, the Inspectorate has sometimes been prepared to hold an appeal in abeyance, pending the outcome of a revised proposal. However, much may depend on the goodwill of the Case Officer handling the appeal.

Of course, the situation often arises where an authority refuses the revised proposal, or fails to determine it within the eight week period, causing another appeal which is then conjoined with the first. Ultimately, a decision on how best to deal with the situation you describe is really a matter for negotiation and agreement between all the parties concerned.

Is there any right to challenge an appeal costs decision? I have checked Circular 8/93 but there doesn't appear to be. My council recently had partial costs awarded against it and having read the reasons for the decision I can't quite believe how poor these are.

While there is no statutory provision for such a challenge, where a decision is legally flawed or clearly perverse it is possible to apply for it to be judicially reviewed by the High Court. This should be done promptly and, in any event, within 3 months of the date of decision. If the council cannot agree on the amount of costs to be recovered, either party can refer this to the Costs Office of the Supreme Court for a detailed and independent assessment. But before this can happen, the costs award must first be made an order of the High Court. The assessment process is governed by the Civil Procedure Rules 1999.

I understand that planning appeal hearings were originally known as "informal hearings" and are often still referred to as such. When did the change in name occur and is there any material difference between the original and current procedure?

Informal hearings were introduced by the inspectorate at the height of the property boom in the mid-1980s, as a simple alternative to the rapid rise in the number of public inquiries. Although the prefix "informal" was dropped after new rules on procedure were introduced in 1988, hearings continue to be run in a more relaxed and less formal atmosphere than at an inquiry, and essentially on the same lines.

An application for a domestic garage was submitted by an agent on behalf of the landowner. But before the application was determined, the dwelling was sold.  With the permission of the original owner, the agent continued to progress the application for the new owner but was later dis-instructed. The new owner asked the authority to transfer his name to the application so that he could appeal against the impending refusal. However, the planning authority said that there was no provision under the Town and Country Planning Act 1990 that made this possible. As Sec 78 of the Act apparently enables only the original applicant or his agent to lodge an appeal, if the new owner wishes to appeal must he repeat the entire process and was the authority’s refusal to change the name of the applicant correct?

Your understanding that the right of appeal is limited to the applicant is correct. While the new owner could repeat the process, it would be possible to lodge the appeal in the name of the applicant, with their permission and with the new owner effectively acting as agent. This type of scenario has been accepted previously by the Inspectorate. But where the appeal would be decided following a hearing or inquiry, it would be prudent to ensure that there is a written agreement between the new owner and applicant, protecting the latter from any costs awarded in favour of the planning authority on the grounds of any unreasonable behaviour.

Although there is no statutory provision allowing applications to be altered once submitted, the courts have ruled that such changes may be made. However, it is for the planning authority to decide whether an amendment is significant enough to constitute a different application. Thus while the planning authority’s refusal to change the name of the applicant seems harsh, as it has discretion in such matters it was entitled to do so.

I have lodged a planning appeal but for reasons outside my control was not able to submit the six-week statement in time. I have, however, received the Council’s statement. As I am still within six months of the decision date, can I ‘withdraw’ the current appeal and ‘resubmit’ a fresh appeal against the same decision?  I cannot find anything in s78 of the 1990 Act or the General Development Procedure Order which states that only one appeal is allowed.

I am not aware of a precedent and, as you say, the legislation is silent on this matter. Circular 05/00 explains that representations received after the due dates will normally be disregarded. They will only be considered in "extraordinary circumstances", for example where delayed due to a postal strike, or by the ill-health of an appellant, or to give a third party more time where the planning authority is late in notifying them of the appeal, or where there has been a last minute change in circumstances which the inspector ought to know about. But if the "reasons outside your control" do not fall within one of these categories and the Inspectorate refuses to extend the time limit, it may be possible to resubmit the appeal. Does any reader have any experience of this matter?

Response

Mere breach of the appeal rules does not lead to disqualification from pursing the appeal. Section 79(6A) of the Town and Country Planning Act 1990 enables the Secretary of State to dismiss an appeal where the appellant is responsible for undue delay in its progress, but only after giving notice that certain steps have to be taken in a given time. Is this "notice" given in the Inspectorate’s standard letter? In addition, under rule 21 of the Inquiries Rules, the Secretary of State can give further time for the taking of any step. But it seems unlikely to me that a further appeal could be made. If so, it would defeat the purpose of the power under section 79(6A).

My practice lodged an appeal, which the client then instructed us to withdraw because of differences with the site owner. These differences were subsequently resolved and we were asked to reinstate the appeal. Initial advice from the Planning Inspectorate was that, in the absence of anything in the legislation, it could accept a resubmitted appeal within the six month period. However, after the appeal had been resubmitted, the Inspectorate wrote to say that: "the recent advice from our Legal Section is that once an appeal is withdrawn it cannot be reinstated, even if it is resubmitted within the six months". The appeal was turned away.

I have had cases in the past where the Inspectorate takes the view that once an appeal has been withdrawn, the application on which it is based is spent and consequently a second appeal cannot be submitted. However, I do not know what the statutory basis for that view is. When submitting representations out of time an appellant must either have had a heart attack or something serious like that, or else must modify their submissions so that these are only responding to the authority’s submission. Failing that, an appellant could submit a fresh application under the "free go" procedure if that possibility is still open, bearing in mind section 70A of the 1990 Act.

Further response

I was recently involved in the High Court case of Corbett v First Secretary of State, where the decision of the Planning Inspectorate to reinstate a withdrawn appeal was quashed. Essentially, Mr Justice Ousley held that there was no express power that gave the Secretary of State the right to reinstate an appeal once it was withdrawn, nor did he feel that it was right to imply one. Therefore HV is not legally entitled to withdraw his appeal and then resubmit it within the six month period. The judge was quite specific in his views that if parliament had intended that there would be an opportunity for a second appeal then parliament would have provided expressly for it.

I recently attended a planning appeal local inquiry that was adjourned by the inspector for several weeks to enable the appellants to account for discrepancies in their submitted plans and to provide accurate drawings of their redevelopment scheme before the inquiry is reconvened. I had always understood that a planning authority could refuse an application due to inadequate information but have been informed that an inspector cannot do this. Is this correct?

Under section 79 of the Town and Country Planning Act 1990, the Secretary of State, and therefore any inspector to whom jurisdiction for determining the appeal has been transferred, "may deal with the application as if it had been made to him in the first instance". Numerous appeals have been dismissed where an applicant for permission has submitted insufficient information to enable the impact of a proposed development to be assessed. In addition, it is possible for an inspector to determine that the submitted drawings are insufficiently accurate to describe the proposed development in accordance with the application regulations and for the appeal to be declared void. This happened in an appeal from Cornwall in 2003, against the non-determination of an application that an authority had declined to validate following a dispute over the correct fee (DCS No: 34759799). In deciding whether he had jurisdiction to consider the appeal and how to categorise the proposed development under the fee regulations, the inspector ruled that the submitted details were inconsistent and unclear. He therefore held that the application was invalid and that he had no jurisdiction to consider the appeal.

A full application for planning permission for a house was registered by a Council. As no decision was made within 8 weeks an appeal against non-determination was lodged, which was validated by the Planning Inspectorate but later withdrawn.  Nevertheless the Council issued a decision notice that purports to be a planning permission, together with a section 106 agreement that is predicated on implementation of the house, and which removes permitted development rights. The house has been substantially completed for more than 4 years and accords with the plans approved by the Council.  I would be interested for your view on the validity of the planning permission and, if you concur that the Council had no authority to issue what purports to be a grant of planning permission such that the house would be lawful by virtue of the 4-year rule, would the restrictions in the section 106 agreement be binding on a prospective purchaser? PD

Once an appeal has been made against non-determination of a planning application, jurisdiction passes to the Secretary of State and a local authority cannot then determine the application. Any later local authority decision, whether after withdrawal of the appeal or not, would be a nullity, and planning conditions would not be enforceable. Likewise, any planning obligation previously entered into must have been predicated by reference to a future grant of planning permission for the development sought. If the permission granted was a nullity, the authority would not have fulfilled its side of the contract and therefore the terms of the agreement could hardly be legally binding on the applicant.

It is of interest that it was thought necessary to amend the Planning and Compulsory Purchase Act 2004 by inserting section78A into the principal Act. This provision introduced dual control for a four week period after a case had passed to the Planning Inspectorate, during which a local authority could still make a decision. However, this facility has not yet been implemented by Regulation.

After pre-application discussions we made a planning application. As the 8 week period for making a decision went along we, as a practice, checked that there was no further information required. The application then ran over with no agreement to extend the period for determination, but the case officer was always ‘just about’ to get a decision to us. Then we were told that the case was being finally disposed of. With hindsight, we should have appealed within six months, but we were told that a decision was imminent and did not wish to take the aggressive approach.  In these circumstances does our client have any right of appeal or redress? SC.

As it would seem that your clients application was validly made, and no further information was requested which was not supplied, it was clearly remiss of the local authority to have dealt with it in this manner. It might appear that it was motivated by an expedient desire to get the application off the books after the period had expired within which an appeal could be made under section 78(2) of the Town and Country Planning Act 1990.

Apart from resort to the local authority’s own complaints procedures, or to the courts, the only other remedy available is via the Local Government Ombudsman. I would have thought this to be a clear case of maladministration which may have a good chance of being taken up. However, I realise that such a shaming exercise is not lightly embarked upon if your practice is locally based and will be submitting many further applications to the same authority. It may be as well to bite the bullet and submit a fresh application. GH.

Response

Our client is in a similar situation. Briefly, the planning authority determined to approve the application subject to the completion of a section 106 agreement.  No time limit was stipulated for the completion of the agreement , which was delayed by third parties. The Council thereafter issued notice of its intention to ‘finally dispose’ of the application under the provisions of Article 25 (11) of the Town and Country Planning (General Development Procedure) Order 1995, 21 days from the date of the said notice.  The section 106 was returned to the Council for completion within this time period.  Notwithstanding this, the Council advised that the application had been ‘finally disposed’ of.

Our understanding is that Section 70 of the Town and Country Planning Act 1990 obligates planning authorities, upon the receipt of planning permission, to ‘grant planning permission (unconditionally or conditionally) or refuse planning permission’ and that no other outcome is provided for in the legislation.  Article 25 of the 1995 Order provides solely for a ‘Register of Applications’ for the purpose of categorizing those which are not ‘finally disposed of’, and those where a ‘decision’ has been made either (i) under Article 20 (2) (a) or (b) by the LPA, or (ii) by the Secretary of State at appeal.  In this instance we contend that the application has not, in fact, been decided.

Notwithstanding this, it is our opinion that Article 25 does not itself provide a means to dispose of an application for the following reasons:-

The Order is itself procedural – it deals with the way things are done, not the final outcome.

The Article is concerned with the register and how it should be arranged.

The primary legislation provides for clear outcomes (ie, grant or refusal).

The Interpretation Act 1978 provides for the continuity of powers.  Powers and duties do not cease merely through the passage of time.

For these reasons we consider that the LPA has misinterpreted and misapplied the provisions of the 1995 Order and would be very interested to hear of any other opinions in respect of this, or from other readers who have dealt with similar situations. RS.

Further Responses

I am amazed that Forum should publish a response that implies that planning consultants should not challenge clear cases of maladministration for fear of prejudice that could occur if they submitted future applications. I find it hard to believe that planners working for a local authority would be so unprofessional as to allow themselves to be swayed in their decision making in this way. If anything, local authorities should welcome such an opportunity to reassess their working practices. AT.

Further Response

I too am annoyed by the approach taken by planning authorities and have looked closely at my understanding of what is meant by a Part 1 and Part 2 Register.  I think the confusion has arisen because most authorities put a fly sheet in the Part 1 Register of effectively every application they have dealt with. But it is clear from the legislation that Part 1 should be ‘live’ applications, including those decided which still have a period within which they may be appealed. Once that period has expired, then the fly sheet should be put in Part 2 – the historic record.

If additional information has been requested, and it hasn’t come, an authority should be under a moral duty to refuse. This keeps the right of appeal alive and, importantly, it is unlikely that the application would be appealed if bona fide additional information is required. It is always better to resolve the issues locally, before wasting an inspector’s time. HG.

Further Response

There is no doubt that planning law allows a split decision to be made following an appeal. It is stated at section 79(1) of the Town and Country Planning Act 1990 that  "On an appeal under section 78 the Secretary of State may a) allow or dismiss an appeal, or  b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not), and may deal with the application as if it had been made to him in the first instance."  This approach has been supported by the courts, most recently in Johnson v Secretary of State for Communities and Local Government [2007]. The lawfulness of a split decision to be made by a local authority is less clear, but in Kent County Council v Secretary of State & Burmah-Total Refineries Trust Ltd.[1976] it was held that a planning authority may grant a lesser planning permission than that applied for, but it would normally be right to enquire first whether the applicant wished to make any representations on such a decision. The ruling concluded that where an application consisted of a number of separate and divisible elements it was lawful for these to be dealt with separately. GH.

I have been told that a local planning authority can refuse a retrospective planning application for works that do not conform to a planning permission, and at the same time decide to issue an enforcement notice. If that is true does it block an applicant’s right to appeal on the refusal of the retrospective? JP.

The answer may be derived from the government consultation document  Improving the Appeals Process in the Planning System issued in May 2007. Here it was stated that "We propose to reduce the time limit for appealing against a planning decision from six months to 28 days where the same or substantially the same development is the subject of an enforcement notice. Applicants would be made aware of the reduced time period within which to lodge an appeal, either when notified of the planning decision or by way of a notice attached to an enforcement notice, depending on the circumstances of the case. This will allow appeals to be linked and dealt with more quickly, thus improving the efficiency of the process and the use of resources." The results of this consultation, published in November 2008, indicated strong support for this proposal and the government’s intention to proceed, although there were  evidently many issues of detailed procedure to be resolved. GH.

In England the General Development Procedure Order 1995 prescribes an eight week time period (56 days) for the processing of a planning application, with an extended period for major applications of 13 weeks.  However, the equivalent Order in Scotland at Part 3, Section 14(2) refers to a determination period of ‘two months’  Also there appears to be no provision for an extended period for applications for major development, although there is for applications requiring an Environmental Impact Assessment (EIA) within the EIA Regulations. Clearly two months is not eight weeks. A period of ‘two months’ will vary according to the number of days in the months in question. I can find no amendment to the General Development Procedure (Scotland) Order 1992 to correct this apparent anomaly, or any reference to this matter in case law or legal references. This question has my office perplexed. TW.

As you say there is a slight disparity between the periods allowed for determination of a planning application in Scotland as against that provided for in England.  I am told that about 25 years ago the relevant period in England was changed from two months to the present eight weeks, presumably to introduce a little more administrative precision, although I cannot see how this  would ever have been a matter of great practice import in the first place. Nevertheless, it would appear the Scottish Government is to continue to specify the time period in calendar months judging from the evidence of its very recent consultation document on Development Management Procedures. In dealing with the new statutory hierarchy proposed for planning applications in Scotland  this states that "The time period within which local development should be determined is 2 months from the date of submission of a valid application (or the last item of material required to constitute a valid application)." The document goes on to deal with your other point, by proposing an extended time period for determination of 4 months for national and major developments. This new provision recognises that given the nature of such proposals they are unlikely to be determined within 2 months. GH.

I am looking at a planning appeal for a Lawful Development Certificate (LDC) relating to a condition with two requirements imposed on a permission.  One part relates to the construction of an access along a new route, and has been complied with and is not an issue. The other requires the provision of a access barrier across the old route. This latter part has been ignored and breached for a period in excess of ten years. Can one part of the condition be severed from the other, and if so how should that be done? JD.

As appears to be the case here, the condition relates to separate physical operations which should be readily severable with reasonable precision using an appropriate form of words.  If no such distinguishment was made at the LDC application stage I think it would be within the competence of an inspector at appeal to sort the matter out with the agreement of the parties. GH.

Details required by three planning conditions have been submitted but not yet approved. An appeal has now been lodged under section 78 of the Town and Country Planning Act 1990 against my authority's failure to discharge these conditions and this has been validated by the Planning Inspectorate. However, in the absence of any formal application to vary or remove the conditions, I cannot find a provision under section 78 that allows such an appeal to be made. What is your opinion? VG.

An applicant's right to appeal against an authority's refusal to agree any details required by a planning condition is set out at section 78(1)(b). Where an authority has failed to give notice of its decision on an application for the approval of these details, the right to appeal is provided by section 78(2). In accordance with Article 21 of the General Development Procedure Order 1995, which deals specifically with such planning applications, this right may be exercised following the expiry of eight weeks from the date that the authority received the application, unless a longer period of time has been agreed in writing between the applicant and the local authority. There is no requirement for the applicant to apply under section 73 to vary or remove the condition. The inspectorate is therefore able to validate the appeal. PM.

Response

I am confused by PM's advice. Article 21 suggests that details submitted pursuant to conditions are treated as "applications" and the new 1APP national application form includes a standard set of questions to be answered with such an application. Does this mean that when details pursuant to conditions are submitted, such as a brick sample or landscaping scheme, they must be registered as a formal planning application? If so, should these applications be counted in the planning authority's PS2 returns and thus its development control performance figures? RB.

Further Response

Practice among planning authorities for discharging conditions varies. Few appear to handle such requests as formal applications. The only explicit references to such applications appears to be at Article 21 of the GDPO and in section 78 of the Town and Country Planning Act 1990, which sets out an applicant's right to appeal. However, the courts have held that the scope for a planning authority to authorise matters by some non-statutory means that circumvent the usual opportunities for community involvement is extremely limited. The new standard application form will put such applications on a more formal basis with effect from 1 October, in accordance with related changes to the GDPO. In anticipation of this, it may be prudent for authorities to formalise their procedures for discharging conditions and treat them as planning applications, in line with Article 21. While this may seem unnecessarily bureaucratic in cases where the details are minor, such as those seeking approval of facing materials, there will be circumstances where a more formal approach and third party consultation is required. Nevertheless, annex F of the guidance notes on PS2 returns suggests that such applications should not be recorded. PM.

Does the Planning Inspectorate have any discretion over the time limits for lodging an appeal against non-determination of an application? What is the position where a planning authority has strung an applicant along to expect a decision? SP.

The time limits for lodging an appeal are set out in Article 23 of the General Development Procedure Order 1995. In the case of appeals against non-determination, the limit is six months from the expiry of the statutory eight-week period, or from the date that any notice was served requiring further information to support an outline application, or from the expiry of an agreed extension to the statutory period, "or such longer period as the secretary of state may, at any time, allow". The latter provision gives the inspectorate discretion to accept late appeals, although it will only do so in exceptional circumstances. I do not know whether these would include the type of situation you describe. It is important for applicants to monitor progress on their applications carefully, respond to requests from the planning authority for additional details and where necessary ensure that a written agreement is set in place over extended time limits. PM.

My local planning authority has asked me to research the dual powers that are available once an appeal against non-determination of an application has been lodged. I understand that this is a common tactic, particularly where major schemes are proposed. Section 78A of the Town and Country Planning Act 1990 provides that dual jurisdiction will apply for an additional period once the statutory eight-week period has expired. While I am unclear on how long this period is, a figure of two to three weeks has been suggested. What is your advice? SM.

The new functions are outlined in paragraphs 77 to 80 of the explanatory note to the Planning and Compulsory Purchase Act 2004, which inserted section 78A into the 1990 Act. These explain that the intention of the revised provisions is to allow a "short" period of dual jurisdiction between the secretary of state and the local planning authority where an appeal has been made against non-determination. Reflecting the wording of section 78A(6), the note makes it clear that the additional period of time will be prescribed by development Order. As far as I can establish, the new provisions have not yet come into force. No changes have yet been made to the General Development Procedure Order 1995 to prescribe the period of dual jurisdiction and I have not seen any consultation paper proposing a time frame. PM.

Two planning applications for the same development were submitted - one in outline, the other for full permission. An appeal against non-determination of the outline application was lodged but withdrawn after permission was granted for the detailed scheme. Does the withdrawal of the appeal also result in the withdrawal of the application so that it is removed from the authority's books?

As soon as a valid appeal is made, jurisdiction is transferred to the secretary of state. The effect of withdrawing the appeal is also to withdraw the application, since control over the application will not revert back to the authority. Although there is no specific requirement to do so under Article 25 of the General Development Procedure Order 1995, it is good practice to record in the planning register that the application has been withdrawn. A copy of the application and background papers should be kept in the normal way.

I submitted an appeal then withdrew it, but then submitted a further appeal within the six-month deadline.  The Inspectorate says there can only be one appeal against a refusal, albeit neither we nor they can find legal provision on this point. They have referred us to the R on the application of Corbett v First Secretary of State 2005, a case involving reinstatement of a withdrawn appeal after the time limit had expired.  Our appeal is not reinstatement but a fresh one.  Are you aware of any legal precedent under which a second appeal cannot be lodged following withdrawal of a first one? MS.

I am not aware of any court case, etc on this issue apart from the Corbett one you cite. Whilst I recognise your scenario is slightly different from that in the Corbett case, the outcome if an appeal is withdrawn and then a further appeal is submitted is very similar. Furthermore, in that case it was stated there can only be one appeal for one application. Thus, if you were to go to court to challenge the inspectorate’s refusal to process your further appeal, I consider that your chances would be small. It would seem far better if you were to make a further application to the council and, assuming it is again refused, lodge an appeal against that. JH

I lodged a written representations appeal after being refused planning permission, against officer advice on ecology grounds. I chose this procedure as an ecological consultant had addressed the issue in a report which the case officer had accepted. The council now requests a public inquiry and the Inspectorate has agreed. We consider no cross-examination is required. Given the extra cost etc. in this climate, the applicant is aggrieved he may not be able to afford to take this further and therefore loses his right to appeal. Can I have your thoughts? RC

Under present practice if either party requests an inquiry or hearing, the inspectorate will agree that. Under the new appeal procedures due to come in on 6 April under the provisions of Planning Act 2008, the inspectorate will be able to determine the procedure and this might help you should similar circumstances occur in future. JH.

At an inquiry a council withdrew two reasons for refusal relating to financial contributions for a development. We had to prepare evidence on these issues and a draft undertaking in case the inspector disagreed with our evidence on this. At no time during the 11 month appeal process did the authority tell us they would take this action. Is this reasonable and what action, if any, should the appellant take? IE. 

It would appear such action would have been appropriate grounds for seeking costs. If they were not claimed at the inquiry, however, only in exceptional circumstances and when there is justification for a late claim can they be awarded subsequently. The Planning Inspectorate website indicates no claim can be made more than four weeks after the inquiry. JH.

I have received an email from a team leader saying there is no hope of my application being approved. Bearing in mind it is only 3 weeks into the 13-week determination period, I would like to appeal now on the basis the application has been refused. Is that possible? RM 

No, you will have to await the council’s formal determination as the view expressed is an informal officer’s view and the final decision might be an approval, e.g. it might be accepted by committee, contrary to recommendation. JH.

I am involved in an appeal where the limited company that lodged a planning application which was refused, but has now been dissolved. Is it possible to lodge an appeal against that refusal? JN.

In a recent case in Cornwall (DCS no: 100-062-913) a limited company was dissolved two weeks before a hearing was due to be held and the inspector considered he had no jurisdiction to determine the appeal. Thus, it would seem the only way to take the matter forward would be for another party to lodge an application and, assuming that is also refused, appeal that decision. JH.

Are councils statutorily required to notify applicants of the right of appeal and most importantly include the time limit for exercising this right? ML.

Article 10 of the Development Management Procedure Order 2010 requires planning authorities to send out a notification in the form specified in Schedule 6 of the Order or substantially in that form when refusing planning permission or granting it conditionally. This specifies rights of appeal and the relevant time limits. JH. 



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