Alan Overton is a retired Civil Servant

Screen shot 2013-08-13 at 11.44.54Applications for
planning permission to develop small residential sites within cities and towns
are frequently controversial. Those that involve building on existing back
garden land are particularly so. They are controversial because they bring with
them, for neighbours and those living in adjoining and adjacent
properties, ongoing problems of overlooking, disturbance, noise and light
pollution, and issues of access, parking and security, particularly where
previously adequate side walls and fences suddenly become exposed to
unrestricted public access and thus vulnerable to opportunistic thieves, burglars
and intruders. There is much empirical evidence to support the reality of these problems.

So great have these become that many local planning authorities (LPA’s) have been obliged
to introduce specific policies to restrict or prevent such developments, and
back gardens have been removed from the designation as previously developed
land. This exclusion remains extant in the National Planning Policy Framework
(NPPF) introduced last year.

Back gardens,
however, remain vulnerable to predatory developers, who long ago realised that
with application refusals open to appeal the real power of decision now rests
with the Planning Inspectorate (PINS), and not with the LPA’s at all. Decisions
made by LPAs and by elected Councillors in Planning Application Committee
(PACs) are routinely treated with open contempt by some developers who submit
repeated applications followed by appeals, sometimes for a decade or more
until, finally, they are fortunate enough to find a PINS Inspector who will
allow the appeal and to grant permission despite concerted and united local
opposition stretching back over many years. Inspectors, as a matter of
deliberate policy, are selected who do not have any significant connection with
the area in which they work or with any of the parties concerned, ostensibly
for reasons of impartiality, but they are, in consequence, fundamentally
ignorant of the local conditions, issues and views that are the reason for
refusal in the first place.

The Inspectors'
decision in matters of planning judgement (as distinct from error of law or
Wednesbury unreasonableness) is final and cannot be challenged in High Court.
Relevant case law includes Lord Hoffmann, Tesco Stores v. Secy of State for the
Environment, 1995, and Sullivan, J, R(Newsmith Stainless Ltd.) v. Secy of State
for the Environment, Transport and the Regions, 2001. Nor can the Inspector’s
decision be changed, even by the Secretary of State who appoints him or her.
Decisions that are immutable in this way are unacceptable and should have no
place in a modern society.

Appeals are
conducted by means of written representation, public hearing or local inquiry
and the guidance notes to the PINS criteria make plain that LPA’s are in the
best position to decide on the method of appeal to be employed in cases which
they judge to be controversial. In reality, however, it is PINS that make the
decision, and any LPA aggrieved by that decision must seek redress through
Judicial Review with the significant expense and expenditure of resources that
such a course inevitably generates.

Costs may be
awarded against either party, or third party, in the event that the said party can
be shown to have acted unreasonably, and by so doing to have caused the party
applying for costs to incur unnecessary or wasted expense in the appeal
process. Inspectors are regularly asked by appellants to award costs, and
guidance in such cases is contained within Communities and Local Government
Circular 03/2009.

The fear of a
refusal generating an appeal which, win or lose, carries the risk of an award
of costs –  a potentially significant
charge on local taxpayers – is very real. There can be no doubt but that this,
de facto and by default, becomes a material consideration for coucillors, and has led to the grant of permission when the lack of quality
or the otherwise unsatisfactory nature of an application should, by rights,
merit a refusal.

correspondence in the national press, and a torrent in recent months, indicates
a deep dissatisfaction with and utter loss of faith in the planning process –
and with the Planning Inspectorate in particular. It is completely unacceptable
for residents to be invited to comment on applications, and to see their valid and
genuine concerns, having been properly addressed by professional Planning
Officers and by Councillors, resulting in a well-merited refusal – only to see
that decision appealed and promptly overturned by some unknown, unelected and
unaccountable Inspector whose knowledge of the area is scant to non-existent.
And with no means of
challenge or redress whatsoever.

This corrosive
state of affairs must end. The recent reform of the planning system, with local
plans and neighbourhood plans yet to bed in, must be accompanied by an equally
wide reform of the appeal system if public faith in planning and local
development – indeed in the whole concept of localism – is to survive.

For planning applications for small site
developments, which are a major source of local controversy, the powers of the
Inspectorate to simply overturn the decision made by the LPA should be
abolished. Inspectors, on appeal, should consider the arguments made by all
parties and make recommendations. If, in the Inspector’s opinion, the appeal
has merit, the LPA should be required, on refer-back, to reconsider the
application in the light of the Inspector's findings and comments. The final
decision, however, must remain with the LPA and, in particular, with
Councillors in PAC, who are democratically elected and answerable to the local
community. Appeals that fail will, of course, be dismissed by the Inspector as
they are at present.

Whatever the
outcome, the Inspector should retain the power to award costs to any party.
That is right in principle and it will act as a spur to all parties to ensure
that evidence is produced on time, decisions are reached speedily and planning
judgements are soundly based.

To further progress
the Government’s localism agenda, the right to decide the method of appeal to
be adopted should be devolved to the LPA. LPA’s are in the best position to
gauge local reaction to each application and the level and method of appeal
more properly rests with them.

Furthermore, Inspectors
should be appointed who do have local knowledge of the area in which the appeal
site is situated. They will thus be better able to judge the merits, or
otherwise, of the grounds of appeal and to set them in context, and with
responsibility for the final decision being restored to the LPA, the question
of bias by the Inspector disappears.

Society is
changing, and the current system of dealing with planning appeals is no longer
fit for purpose. Demand for transparency and accountability in public office,
including quangos such as the Planning Inspectorate, is higher today than ever
before and the localism agenda, if it means anything at all, means local
communities deciding on planning applications that profoundly affect the lives
and the dwelling places of the people who make up those communities.