Planning: how to appeal & win
What are the potential courses of action when the council rejects your proposal? Mike Dade explains
Despite the meticulous research, preparation and presentation you’ll put into your scheme, it’s possible that your planning application will stumble at the first hurdle – but that doesn’t mean it’s the end of the line for your project. If your submission is refused or the local authority doesn’t reach a decision within eight weeks from registration, you still have the right to appeal. This process takes the decision out of the council’s hands and into those of an independent inspector.
The prospect of going down this route may seem a little daunting and it’s not always obvious as to whether you will succeed. So, let’s take a closer look at the procedure involved and the factors that will give your scheme the best chance of success.
The basics
The appeal process can be divided into two categories. The first covers householder appeals that apply to extensions, garden buildings and works in domestic gardens. The second kind, planning appeals, covers everything else (ie a new build home).
There are three distinct courses of action: written representations, informal hearings and public enquiries. The majority of appeals for self builds, extensions etc are dealt with via written representations. In Scotland, rights to appeal are limited for most small-scale schemes that have been refused under delegated powers, and otherwise involve only a local review panel.
At present, going through the appeals process is taking a long time, with householder entreaties in England currently taking about 15 weeks from start to decision. For petitions that go down the written representation route it takes roughly 25 weeks, and 49 weeks for informal hearings. Currently, there are no fees for those who decide to take this course of action. However, this excludes payments you might incur for any professional expertise you seek out to help with your appeal. In very limited circumstances, it is possible to recoup any costs involved in the process back from the council. Likewise, the local authority can also make a claim against you. However, successful requests for costs are rare. Just because you win an appeal it doesn’t automatically follow that you get an award of expenses.
Is it the right option for you?
After a refusal of planning permission, you have six months to appeal. If your entreaty is a householder petition, the period is 12 weeks. However, the question as to whether or not you should actually go down the appeal route is a lot less cut and dried.
Given that national statistics show that only just over a third of appeals succeed, this path is no guarantee of
a successful outcome. As it’s down to one individual to make the decision, there’s considerable uncertainty in the process. Consequently, this course of action should always be considered as a last resort, to be followed only when attempts to reach agreement with the council or planning officer have failed and no reasonable compromise can be reached. Plus, it’s important that you read both the reasons for the refusal given in the decision notice, as well as the officer’s report on your application. The latter spells out the thinking behind the rejection.
An appeal is worth considering in cases where the officer’s statement recommends approval but the application has been refused by the planning committee – this scenario isn’t as uncommon as you might think. At appeal, it presents the council’s officers with the unenviable task of arguing against their own report.
Otherwise, where documentation recommends refusal, it’s important to look carefully and objectively at the policies quoted in the explanations for this. Consider whether it would be reasonable to conclude that your scheme ticks the relevant policy boxes. Planning inspectors tend to boil their decisions down to a few key issues. For example, would the proposed development be sustainable? Would there be harm to the landscape? Or to neighbour amenity and the character of the area? And so on. Focus your attention on key factors like this, rather than your outrage at a neighbour’s unreasonable objection, for instance.
How the process works
Petitions can be lodged in England and Wales via the Appeals Casework Portal. Written representations involve providing details of the planning application and reasons for refusal, in addition to setting out the details as to why you think it should be allowed. The forms are reasonably straightforward and there are good explanatory notes to guide you through the process.
The statement in support of your plea is known as your grounds of appeal. With householder entreaties, the council relies on its own reasons for refusal and the officer’s report on the application. However, in other cases the local authority – as well as any objectors or supporters – have the chance to put their case forward and respond to yours. You then get a final opportunity to comment on their reasoning and any objector letters but you can’t add in new basis for appeal at this late stage.
Following this, the inspector makes a site visit. If necessary, you need to be available to ensure they can get into and see the entirety of the plot. However, you can’t make comments in support of your case during the assessment. Within a few weeks of this, their decision will arrive. It sets out both the ruling on whether to allow or dismiss the appeal, as well as the thinking behind it.
It’s important to bear in mind that a rejected plea can disguise an inspector’s approval of a large part of your plans, leaving the door open to a new, revised application. However, they won’t say specifically how a scheme might be amended to render it acceptable. They just deal with the proposal in front of them.
How to prepare your grounds of appeal
Where the reasons for refusal are straightforward, perhaps just involving impacts on neighbours or the character of the area, then a DIY appeal might be a viable option. However, where the causes for a rebuttal involve legal matters, for instance, or subtle points such as interpretation of policy, then professional help from a planning consultant would be your best option.
When writing your grounds of appeal, identify the key planning issues and areas of dispute so you can address each of them objectively. Use numbered paragraphs for ease of navigation. Look up a few appeal decision letters on your council’s planning website so you understand the style that the inspectors adopt. That way, you can aim to produce something along similar lines.
Avoid incorporating ‘who said what and when’ arguments and complaining about the council officer’s conduct. These aren’t relevant to the planning issues at hand and are therefore unlikely to sway an inspector. If the application attracted objections from neighbours, don’t address these individually; just pick out the key planning points and focus on those. A typical example would be where someone living nearby has said your proposal would have a harmful impact on road safety but there’s no objection to the scheme from the Highways Authority. Simply pointing out that the official body doesn’t share this individual’s concerns would be an effective and concise way of tackling the issue.
Recouping costs
To make a successful claim, you must show the council acted unreasonably in reaching their decision. Exactly what constitutes unjust behaviour is set out in government planning policy guidance. Usually a request for expenses would seek to recover any professional fees that you’ve had to fork out to put through the appeal. In these circumstances, you’d have a planning consultant on board to advise and make the claim for you.
Don’t be tempted to try and retrieve money just for the sake of it. It will cause the council to put forward a counter argument where they’ll probably seek to reinforce the merits and validity of their case. This would not be helpful to your chances of success with the appeal.
Conclusion
Appeals are a terrific invention in cases when you win – but can be frustrating and unhelpful to your cause when you don’t. Don’t go down this route unless you have no other option and are confident that you have genuine planning arguments to counter the motivations behind the refusal. Think carefully about whether a DIY entreaty gives you the best chance of success and seek professional advice if in doubt. Remember that decisions resulting from this process are somewhat unpredictable, so if you do take this course of action, good luck!