By Mark Lowe QC, Jack Parker and Ruchi Parekh
Yesterday the government published the report of Bridget Rosewell OBE following the review she has recently led into the planning appeal system and it makes compelling reading.
In a bare 60 pages, it contains a brisk, pragmatic and sensitive insight into the strengths and weaknesses of the inquiries system providing recommendations for improvement of each stage of the process.
At a time when backbench bills have promoted the idea of heavily restricting or removing the right of appeal from planning decisions, it is a welcome advocate of the system in principle. The report states that "there is much to commend in the current process" and identifies the perceived advantages of the public inquiry as follows:
"The responses to the Call for Evidence confirm what we consistently heard at the stakeholder meetings that the ability to present evidence, and have it rigorously tested through cross-examination are very important for all the groups involved in the process. Other factors which were also highly valued were the ability for some matters to be examined in more detail than might be possible through either a hearing or written representation process and the opportunities available for the views of communities to be heard".
It is not unsurprising in the light of that conclusion that the system is recommended to remain but in an improved form via the adoption of a series of reforms that are largely a common-sense introduction of good practice culled from elsewhere, especially the modern procedure of the courts.
However, for the recommendations to work, the author frankly acknowledges the need for a culture change in the conduct of PINS as well as the provision of significant resource.
What the statistics say
The statistics set out in the report vividly demonstrate the need for reform and additional resource in terms of the provision of properly trained inspectors:
- An average of 315 inquiry appeals were decided each year in the last five years.
- Around 81% of these were decided by a planning inspector (with the remaining decisions taken by the Secretary of State).
- In 2017/18, average timescales for inquiries determined by an inspector were as follows:
- Receipt to start letter - 7 weeks
- Start letter to start of inquiry - 29 weeks
- Start of inquiry to decision - 11 weeks
- Receipt to decision - 47 weeks
- Over the past four years, the number of appeals has reduced by 30% and the approval rate for appeal decisions has declined from 62% to 47% over the same period.
The appeal process
The review considers the appeal process from the submission of the appeal to the receipt of the decision. The overarching aim of the recommendations is to restore the target time for decisions (in inspector determinations) back to 22 to 26 weeks from the receipt of the appeal.
Submission to start date
The review stresses the need to streamline the process of validation. It envisages that this should be done by the introduction of pro forma documentation which can be electronically checked removing the need for manual validation processes and the uncertainties that they introduce. These recommendations are linked to the rollout of the ODT project by PINS that should provide a new Planning Appeal Portal including an electronic platform for all appeal processes.
It urges reform of the Statement of Case through use of a pro forma approach directed to far greater engagement and precision.
The process for deciding the appeal mode should be streamlined, building on the current PINS Guidance Annex K approach. The one disappointing area perhaps of the report is in the failure to recognise the need for inquiries in cases other than those concerning housing (86% of current appeals) which may well be a result of a lack of resource rather than other reasons.
The start date letter should be issued far more quickly and this letter should identify the inspector who should have ownership of directing all the preliminaries to the inquiry thereafter.
Start date to inquiry
Agreeing the inquiry date and venue is presently a frequent source of inefficiency and delay. The recommendations are that a senior inspector at PINS should lead on these matters bearing in mind the priority to be given to the target date for the decision. The report also floats the idea of providing more flexibility by undertaking consultation on the issue of the appellant contributing to the cost of the venue.
The Statement of Common Ground stage should be retained but subject to a major overhaul which should be directed to producing more informative, meaningful statements in a timely fashion (policed by the nominated inspector). The report acknowledges the benefits of topic-based statements between experts and the use of pro formas to streamline the process. Emphasis is placed, rightly in our view, on the need to identify the areas of disagreement with as much care as those of agreement.
Pre-Inquiry management via Pre-Inquiry meetings or, more generally, case management conferences by telephone is strongly encouraged to prod the parties to comply with the above procedures and to ensure efficient management of inquiry time. The use of hybrid procedures, that is the use of round table discussions or the submission of written statements, is strongly encouraged together with the topic-based approach at the inquiry where appropriate. This is all consistent with the overall advice that advocates "inspectors taking a stronger, more directional approach throughout the inquiry process".
Amendments to applications are recognised as having a potentially useful role in the reduction of issues but these should take place in the course of pre-inquiry engagement rather than being proposed at the inquiry. This is entirely consistent with the principle of the inspectorate taking an early pro-active role in the procedure of the inquiry.
At the inquiry the plea is generally for greater accessibility via the use of appropriate technology so that the paperless inquiry becomes a more attractive proposition than at the current time. This requires better and consistent cataloguing of material and the availability of the technology to all at the inquiry. The new portal would have a major role to play in this field.
There is even a recommendation to consider the use of transcription technology in Secretary of State decisions so that the written closings could give transcript references!
Warning is given about the consequences of hostile and bullying cross-examination techniques and the need for intervention and reporting to professional bodies where appropriate.
Most importantly the report demonstrates the clear need for more appropriately trained inspectors to ensure that appeals are held in an acceptable time frame.
Finally, the review is neutral on the topic of introducing appeal fees for appellants.
There is a strong feeling throughout the report that its recommendations build on current good practice and on technological advances already in the pipeline at PINS.
To some extent also the focus on the inspector led process is not whistling in the dark but coincides with an acknowledgement by the government that matters cannot remain as they are and more resource needs to be given to address the manpower shortage.
It now lies with the professionals engaged in the system to encourage the government to step up to the plate to ensure these recommendations are put into practice as soon as possible and, preferably, in accordance with timelines recommended by the author.
We suspect we will be dusting down copies of the Review for some years to come in order to prepare for case management conferences with inspectors and to press the other side to better engage with the appeal process.
Mark Lowe QC, Jack Parker and Ruchi Parekh are members of the Cornerstone Planning Team. If you have any questions you can contact them or our clerks at firstname.lastname@example.org