Fighting an Application

Old school – prior to the Cameron government, councils had enforceable planning policies (core strategies) agreed by the government, supported by detailed planning policy guidance (PPG). Councils owned a significant amount of land which they could develop. To grant permission, councils needed to persuade elected councillors on the planning committee, though the developer could appeal.

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The National Planning Policy Frame Work (NPPF) Introduced by the Camaron government to replace many pages of detailed Planning Policy Guidance (PPG) and remove ‘red tape’. NPPF is much shorter set of general policies around the vague notion of sustainabilty. It has been the developers and their lawyers who have been able to decide what is sustainable or not, with councils too often afraid to challenge them.

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Local Plan – more detailed policies produced by the Local Authority. These policies may allocate housing numbers to towns and villages, and include some development sites, but must be in general accordance with the NPPF. Such is the difficulty in making plans to meet the housing numbers, only half of authorities have an up to date plan.

Housing requirement – Authorities have housing number allocated them for the plan period according to an Objectively Assessed Need. Assumed delivered evenly over the plan period.

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Five year housing supply. Introduced with the NPPF. If the Authority cannot demonstrate enough sites being development in the next 5 years then policies ‘for the supply of housing’ become out of date and any development judged ‘sustainable’ is allowed. Most authorities do not have a 5 year housing supply and have had to provide an extra 20% buffer due to past shortfall.

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Neighbourhood Plans – Introduced with the NPPF. Supposed to give communities control development. Can allocate sites for development, and protect some sites for development. Needs to be consistent with the local plan. Unfortunately these plans have failed to deliver, falling foul of the 5 year supply, having clauses deleted by Plan examiners, or having all the protected sites given permission during the 2 or 3 year it has taken to develop the plan. Plans are not given the benefit of the doubt, they are given little weight.

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The Planning Committee - The planning committee is made up of local councillors and decides the application. Important note – except for minor and technical delegated decisions, the planning officers cannot approve anything. Only the committee has that power. Also important to note that if there is a new material factor after the decision but before the decision notice is issued (usually several weeks later, while the legal agreements are sorted out) the planning authority must, legally, ask the committee to decide again. Tips on addressing the committee. Avoid passion. Stick to the main points (no more than 3). Book your slots early. Get your experts up.

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Appeals – If an application is refused, applicants have the right of appeal. The an inspector from the planning inspectorate will decide the application instead. There does not have to be anything wrong with the councils refusal, the inspector can simply disagree with it. Objectors do not have a right of appeal – their only recourse is Judicial Review if an application is approved. Objectors may be allowed to form a Rule 6 party for the appeal.

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Rule 6 – Objector’s groups and Parish Councils can ask permission to form a Rule 6 group. A Rule 6 group takes full part in the appeal, can present evidence and be cross examined and cross-examine. It needs to keep to a strict timetable. You will probably want to hire an advocate, or junior planning barrister to guide you through the process. This route would be effectively removed by the reforms.

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Experts and other professionals - An expert on your side will massively improve your chances of success. You may find it an uphill struggle to find an expert willing to pit themselves against the developers that hand out all the work, so persevere. Do this as soon as possible and get them before the planning committee.

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Call in – You can request an application to be called in by the Inspectorate before the decision notice is issued (which could be after the committee decision). If they agree, it will be decided by appeal. Particularly large or important applications can be called in, e.g. those affect more than one district, with a historic england objection, or application that raise important policy issues. The Inspectorate will issue a holding notice while they decide. Your council may have a procedure where councillor can request that a decision is made by a full committee meeting (not just the planning committee).

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Judicial Review – One an application is approved by the committee, the only way to challenge it (other than call in) is legally (there is no right of appeal for objectors) by launching (or threatening) a judicial review. The decision can only quashed on legal or procedural grounds. First a pre-action-protocol letter should be written setting out what errors you think have been made to give the council a chance to correct them and refer back to the committee (who you will have to hope decide differently). Then you have 6 weeks to make a JR claim. This is a two stage process – a permissions judge decides whether there is a prospect of success (two thirds get thrown out). Of the third that are allowed, only a third is successful. JR is expensive, particularly as the loser pays the other sides costs, but you can insulate yourself against the latter under the Aarhus convention for environmental claims to £5k as in individual or £10k as a group.