How to Deal with a Plan­ning Re­fusal

Once the ini­tial de­spair has sub­sided, there are av­enues to take to try and achieve your dream build, as plan­ning con­sul­tant Ken Di­jks­man ex­plains

Homebuilding & Renovating - - CONTENTS -

Plan­ning con­sul­tant Ken Di­jks­man ex­plores why you might face a plan­ning re­fusal and the po­ten­tial op­tions avail­able to you

Most plan­ning au­thor­i­ties en­cour­age an open di­a­logue with ap­pli­cants be­fore and dur­ing the as­sess­ment of an ap­pli­ca­tion. They will also usu­ally agree to ex­tend the eight-week pe­riod within which they are sup­posed to make a de­ci­sion. So, in the­ory you should be al­lowed to sub­mit amended draw­ings to deal with ob­jec­tions. But get­ting plan­ning per­mis­sion is never guar­an­teed. You may pay for pre-ap­pli­ca­tion ad­vice, amend your scheme ex­actly as the plan­ning of­fi­cer re­quests, talk to your neigh­bours and take their con­cerns into ac­count, and turn up to a plan­ning com­mit­tee and talk a lot of sense. Un­for­tu­nately, even this help­ful ap­proach doesn’t re­move the pos­si­bil­ity of get­ting a re­fusal. The whole sys­tem is un­pre­dictable and risky.

So You’ve Re­ceived a re­fusal, why?

There are two ‘types’ of rea­son for re­fusal, one is op­po­si­tion in prin­ci­ple to what you want to do. For ex­am­ple, an ap­pli­ca­tion for a sin­gle house on a green­field site out­side a vil­lage with­out spe­cial jus­ti­fi­ca­tion is likely to get re­fused. Re­gard­less of the size of house, or the sit­ing (and how vis­i­ble it is), it would be re­fused ‘on prin­ci­ple’ be­cause it’s a site that hasn’t been al­lo­cated in a de­vel­op­ment plan.

The se­cond type of re­fusal is one based on de­tail. Per­haps you have an in­fill plot in a town where the prin­ci­ple of de­vel­op­ment is ac­cept­able, but there is op­po­si­tion to your scheme be­cause of its height, scale, de­sign, the po­si­tion of win­dows or lack of park­ing. These are all de­tailed mat­ters ➤

that should be ca­pa­ble of com­pro­mise and with changes al­low­ing the plan­ning of­fi­cer to rec­om­mend ap­proval.

If you do get a re­fusal you need to un­der­stand the jus­ti­fi­ca­tion that has been given. The an­swer as to why is prob­a­bly to be found in the lo­cal au­thor­ity’s plan­ning poli­cies. You will re­ceive a De­ci­sion No­tice, which will spell out in sev­eral para­graphs the rea­son your new house or ex­ten­sion is be­ing re­jected. The rea­sons will of­ten be fairly short, and of­ten quite sub­jec­tive, and they will re­fer to lo­cal plan poli­cies and pos­si­bly a de­sign guide. There will also be a pub­licly avail­able of­fi­cer’s re­port and this will ex­plain in much greater de­tail (with lots of opaque plan­ning jar­gon) their ra­tio­nal for find­ing fault with your scheme. If you’re not con­fi­dent un­der­stand­ing all the ‘jar­gon’, ask your de­signer to take a look or a plan­ning con­sul­tant will be able to help; if you don’t have one on­board al­ready, now’s a good time to get one.

So, if you get a re­fusal you need to de­cide what to do: re­design and re-ap­ply or fight the re­fusal at ap­peal?

THE RE­DESIGN ROUTE: YOUR FREE GO

Even if you get a re­fusal you can still reap­ply and hope­fully re­spond to the con­cerns and over­come them. You get a free go to re­sub­mit if you ap­ply for broadly the same pro­posal within a year. You can use the ini­tial ap­pli­ca­tion as a mech­a­nism for ex­pos­ing the key is­sues and to gain an un­der­stand­ing as to what you’re likely to be able to build.

ap­peal: the tough Route

If you don’t be­lieve there is any room for ne­go­ti­a­tion and you’re con­fi­dent that the prin­ci­ple of your de­vel­op­ment is not squarely con­trary to plan­ning poli­cies, then you may want to ap­peal. In some cases ap­peals are the only an­swer and you can win, but you need to know how to play the game.

So, if an ap­peal is the best op­tion, there are re­ally only two ways of do­ing this — either a Writ­ten Rep­re­sen­ta­tions Ap­peal or a hear­ing. In both pro­ce­dures there are ap­peal forms to com­plete and you must pro­vide a State­ment of Case (more on which over­leaf). All the doc­u­ments must be re­ceived by the plan­ning in­spec­torate be­fore the ex­piry of six months from the date of re­fusal. You may feel it would be best for this ap­peal to be dis­cussed in front of the in­spec­tor (who is an in­de­pen­dent gov­ern­ment-ap­pointed plan­ning ex­pert based in Bris­tol) and this is where you can re­quest a hear­ing.

Un­for­tu­nately, if the in­spec­torate does not be­lieve a hear­ing is truly nec­es­sary they will not agree to it. Hear­ings are only nor­mally granted when there are mat­ters of com­plex fact to be in­ves­ti­gated and dis­cussed. For ex­am­ple, an en­force­ment ap­peal where peo­ple must give ev­i­dence un­der oath, a pub­lic in­quiry would be usual. A pub­lic in­quiry is highly un­likely to be needed for a sin­gle in­fill plot or ex­ten­sions to a house. It is also ex­pen­sive be­cause

you nor­mally need a bar­ris­ter.

Your writ­ten State­ment of case

The ba­sic plan­ning prin­ci­ple is that de­vel­op­ments should be granted if they are in ac­cor­dance with the de­vel­op­ment plan ‘un­less ma­te­rial con­sid­er­a­tions dic­tate oth­er­wise’. This means that your writ­ten State­ment of Case needs to fol­low the plan­ning poli­cies un­less there is a very good plan­ning rea­son not to — for ex­am­ple, the rel­e­vant po­lices are out of date or they are not rel­e­vant to the par­tic­u­lar cir­cum­stances of your case.

Gov­ern­ment ad­vice is very im­por­tant. The re­cently re­vised 2018 Na­tional Plan­ning Pol­icy Frame­work (NPPF) and as­so­ci­ated plan­ning pol­icy guid­ance are found eas­ily on the web and they un­der­pin all lo­cal plan­ning au­thor­ity (LPA) de­ci­sions. LPAs some­times have lo­cal plans and other de­vel­op­ing doc­u­ments which are out of date and

don’t ac­cord with gov­ern­ment ad­vice; in which case the NPPF will take prece­dence. But, do bear in mind that with small-scale in­di­vid­ual schemes like ex­ten­sions or sin­gle plots there will be an aw­ful lot of sub­jec­tive opin­ion and an ap­peal in­spec­tor may or may not agree with the opin­ions of the plan­ning of­fi­cers or the com­mit­tee. You can­not as­sume that just be­cause a plan­ning of­fi­cer rec­om­mended ap­proval, and the com­mit­tee ig­nored it, that the in­spec­tor will nec­es­sar­ily sup­port the plan­ning of­fi­cer’s views.

Ap­peals aren’t easy

If you’re not go­ing to em­ploy an ex­pert – a plan­ning con­sul­tant for ex­am­ple – and you log the ap­peal your­self, it’s very im­por­tant to stick to rel­e­vant plan­ning is­sues. Plan­ning poli­cies of­ten talk about de­vel­op­ments be­ing ‘in keep­ing’ with the ‘char­ac­ter and ap­pear­ance’ or with the ‘lo­cally dis­tinc­tive’ his­toric iden­tity of an area. So sub­jec­tive opin­ion needs to be ex­pressed in these terms.

Per­sonal mat­ters are hardly ever of any in­ter­est to a plan­ning in­spec­tor con­sid­er­ing an ap­peal. Every­body has a very good rea­son why they would like a big­ger house or a new house; sick chil­dren or el­derly rel­a­tives, fi­nan­cial con­sid­er­a­tions etc, are all pretty much ir­rel­e­vant in plan­ning. It is a cold hard sys­tem that pays lit­tle or no heed to per­sonal cir­cum­stances, how­ever dire they may be. So, stick to the ar­gu­ments and demon­strate how your scheme com­plies with the LPA or gov­ern­ment’s plan­ning poli­cies.

This may sound pretty neg­a­tive but plan­ning ap­peals are

rarely easy. Hav­ing said that, around 30% of mi­nor sin­gle dwelling or house­holder ex­ten­sion ap­peals are suc­cess­ful and some­times it’s pos­si­ble to ob­tain costs from the lo­cal au­thor­ity on the grounds that their de­ci­sion was un­rea­son­able.

How­ever, in my view, ap­peals are gen­er­ally best avoided if you can get al­most all you want through com­pro­mise. This is be­cause it will take around six months to get a de­ci­sion and the peo­ple who de­ter­mine the ap­peals, plan­ning in­spec­tors, have their own opin­ions and it is very dif­fi­cult to pre­dict the out­come. I’ve known ap­peals where an ap­pli­ca­tion for a house has been re­fused for one rea­son and the ap­peal plan­ning in­spec­tor has de­cided to refuse it for an en­tirely dif­fer­ent rea­son. So, there is a dis­tinct pos­si­bil­ity that an ap­peal de­ci­sion could blight a site and make it even harder for you to re­design the scheme and get a per­mis­sion in the fu­ture.

How to avoid a re­fusal al­to­gether

Gen­er­ally speak­ing, it’s bet­ter to ne­go­ti­ate an ap­proval by mod­i­fy­ing a scheme than it is to get a re­fusal and ap­peal. Sur­pris­ingly, you don’t have to al­low the LPA to refuse your ap­pli­ca­tion; it doesn’t need to go that far. This may sound a bit odd, but it’s legally pos­si­ble to with­draw your ap­pli­ca­tion un­til just be­fore the De­ci­sion No­tice is ac­tu­ally is­sued.

Let’s say you’ve been talk­ing to the plan­ning of­fice and dis­cus­sions are giv­ing you cause for con­cern. The ridge height of your pro­posed ex­ten­sion is rais­ing is­sues. Plan­ning of­fi­cers are hint­ing that it’s too high in com­par­i­son to neigh­bour­ing houses and you’ve got an inkling that your pro­posal might get re­fused on this ba­sis. You may wish to avoid the po­ten­tial blight of that re­fusal and have a go at re­design­ing it to over­come some of the ob­jec­tions. You can even with­draw the ap­pli­ca­tion af­ter a plan­ning com­mit­tee has con­sid­ered it, with a writ­ten for­mal re­quest to with­draw it handed to a mem­ber of the plan­ning de­part­ment. This needs to be done be­fore they have is­sued and sent out the De­ci­sion No­tice so hand in your re­quest to with­draw it as soon af­ter the meet­ing as you can.

“Ap­peals are gen­er­ally best avoided… it is very dif­fi­cult to pre­dict the out­come”

Ken Di­jks­man Ken, a for­mer plan­ning of­fi­cer, is now a plan­ning con­sul­tant and owner of Di­jks­man Plan­ning LLP.

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