We may have to appeal

We will not make an application unless we are almost committed to appealing a refusal. We are lawyers and planners, not gamblers. Occasionally, we shall have spent a lot of money and time with a view to making an application, but then decide to cut our losses. This is rare.

In theory your local planning authority should decide whether to refuse or grant your application within 8 weeks for a “small /householder” development or 13 weeks for a large one. The decision will be made either by the case officer himself or by the planning subcommittee of members, depending on the local planning authority’s (“LPA”) arrangements and the allocation of your particular case.

Either way, the procedure ends by the case officer preparing a delegation report. That report is likely to be passed to a more senior officer for final approval. However this is often a somewhat nominal exercise. Occasionally, the decision on an application goes to the planning committee for approval. It is rare for the planning committee to decide against the recommendation of the case officer. Occasionally, they may disagree. One good talker can often persuade his or her colleagues to follow her point, whether in our favour or against the application. So while the planning officer will have followed the rules, as he sees them, the committee may follow their hearts.

If our application is refused, our first action is to talk to the planning officer to identify what changes could save our proposal. The law provides for this. It is usual for this to be free of further planning fees (at the option of the LPA).

Our policy is to do all we can to satisfy all of the requirements of the LPA in the first instance. Anything else tends to cost more and of course takes more time. LPA officers will not be enthusiastic in dealing with an applicant who plays strategic games with the system.

If we are unable to satisfy the LPA and we believe that they are relying on bad information or have made an illogical decision then we will appeal. A successful appeal depends on persuading a Ministry Inspector that the decision made by the LPA was not a reasonable decision based on the facts of the case. There are other considerations which could be taken into account but it is not part of the task of the inspector to reassess the case in order to make a new judgement. It is most important to bear in mind that the inspector has no duty to assess whether the original decision maker appropriately balanced the known facts and professional judgements for and against your application, unless the assessment is patently unreasonable.

Our policy is almost always to appeal a refusal. If we have conducted our case management efficiently, then by the date of the refusal we shall know whether or not our application should succeed. We shall have recorded every email message and document arising from the case management so that every error made by the LPA has been carefully recorded. Our experience of litigation management is likely to be at least as deep as the LPA solicitor and we can probably afford to invest more time in fine tuning our case.

An appeal is a legal process, like going to Court with an important case. It requires the same research and investigation and the same attention to detail. The appeal is to a government appointed inspector. She will have no loyalty to a particular LPA. She will not press the Government agenda, but will take a ruthlessly objective view according to the law. However, we bear in mind that planning is an area of law where each case depends on its facts. There is no question that different inspectors take different approaches to the issues under discussion.

We expect to win.

If you would like a useful summary of our services, here it is.