Planning matters

There has been no rest for the Welsh Government’s planning team this summer with a further consultation now underway following Royal Assent of the Planning (Wales) Act last year. These latest proposed changes relate to appeals and call-in procedures, with a focus on:

• Ensuring a more proportionate, cost effective and streamlined process;
• Increasing the speed of decisions;
• Increasing transparency; and
• Increasing fairness for all parties.

Key proposed changes include:

1. The requirement for a full Statement of Case[1] to be submitted to the Planning Inspectorate at the outset, in most cases, instead of the current requirement of 6 weeks after the start date.

2. LPA questionnaires and notification of interested parties to take place within 5 working days of the starting date, compared with the current 2 week timeframe.

3. Representations from the LPA and interested parties to be made within 4 weeks of the start date, compared with the current 6 week timeframe.

4. Final comments on the LPA and interested party comments by all parties to be made within 6 weeks of the start date.

5. The removal of the requirement to agree Statements of Common Ground (SoCG) but they would still be encouraged.

6. The written representations procedure as the default procedure for all appeals or call-ins. Although, the examination method could be tailored to the specific requirements of the appeal or called in application creating the opportunity for multi-mode examinations e.g. part written representations/part inquiry. Inspectors can already decide which examination method to follow.

7. Inspectors to be permitted to request further statements of up to 3000 words on certain matters to seek to avoid the need for a hearing or inquiry where the matter can be clarified in writing.

8. The focusing of topic based sessions by limiting participation in inquiries or hearings to only those invited by the Inspector.

9. New matters could not be raised during an appeal unless it was demonstrated that: the matter could not have been raised at the time the LPA was considering the application; that the matter raised was a consequence of exceptional circumstances; or, the restriction on amendments would not affect any requirement to have regard to the provisions of the development plan or any other material consideration.

10. Changes to an application to be made only where there is a drafting or drawing error and those changes would not affect the substance of the application.

11. Costs to be awarded to parties for written representation appeals where parties are deemed to have behaved unreasonably.

12. Similarly, costs could also be awarded to Welsh Ministers for unreasonable behaviour of the parties involved in the appeal (in order to protect the public purse).

13. An application for the award of costs would need to be made at the earliest opportunity such as at the submission of the statement of case and/or where appropriate within the 4 and 6 week deadlines from the start date. Where an application for costs was necessary to cover unreasonable behaviour during proceedings a statement would also need to be included expressing why the application for costs could not have been submitted at an earlier stage.

14. The Planning Inspectors or Welsh Ministers to be able to award costs to any party in the proceedings even where no application for costs has been made by individual parties.

The likely implications for appellants are mostly constructive but would require a greater front-loading of work with limited opportunities to raise new matters at a later stage. The mixed mode appeals should introduce a pragmatic means of dealing with straightforward issues. The most significant proposal would be the removal of the opportunity to make any changes to the appealed scheme. Whilst theoretically this should make the appeal process itself more efficient, overall this may well delay timely development taking place when compared with the current ability for LPAs and appellants to reach an agreement on non-prejudicial changes without the need to resubmit a planning application.

The proposal to enable Planning Inspectors or Welsh Ministers to award costs even where no application is made should certainly assist in focusing the minds of all parties in the appeal process. With the front-loading of work for the appeal there is a risk of higher cost awards against LPAs in cases where spurious reasons for refusal are given but subsequently not defended at appeal.

Responses to the consultation must be submitted by 4 November 2016. If pursued the proposed changes to the regulations and guidance will be introduced in early 2017.

Changes are also proposed to enforcement appeals and standard daily costs for certain circumstances such as examination of local development plans, we can discuss these with you if they are of interest.

Please contact Helen Ashby-Ridgway, Associate Director, 02920435880 for any further information.