Planning Appeals Update

Transcription

1 Planning Appeals Update Talk to the Royal Town Planning Institute (Northern Ireland) 30 th November 2017 Trevor Rue Deputy Chief Commissioner

2 Overview Selected appeal decisions issued over the past two years Summary of the Commission s guidance on costs awards Data and commentary on costs decisions issued since inception of new system

3 Appeal Decisions

4 Development in the Countryside When considering proposals to convert buildings, the locally important test in the SPPS takes precedence over the suitable test in PPS 21. When considering infill proposals, unimplemented approvals cannot be taken into account. When assessing the need for a farm building, it is the holding that has existed for six years that must be considered.

5 Residential Development An outline application can incorporate specific parameters and detailed plans. A reserved matters application can consider only the five matters identified in statute. The need for temporary accommodation must be assessed against current circumstances. A B&B is not a tourist establishment as defined by PPS 16.

6 Renewable Energy Noise from an existing turbine should not be treated as part of background noise. The Commission generally places responsibility for noise monitoring on the operator. Untargeted off-site community donations unrelated to the proposed development cannot be taken into account.

7 Minerals and Waste A retrospective application for EIA development dependent on unapproved enabling works cannot be amended by submitting new drawings at a hearing. When enforcing against waste disposal, planning authorities should carefully consider the environmental consequences of each remedial step being specified.

8 Built Heritage Law and policy now require consideration to be given to the desirability of enhancing the character and appearance of a Conservation Area where an opportunity to do so exists. Consent to demolish a listed building, where granted, is normally tied to a satisfactory redevelopment proposal.

9 Planning Conditions and Agreements Conditions can secure maintenance of works or equipment, even if the future occupants are unknown. Contributions sought through a planning agreement must be required to facilitate the development being permitted. Conditions governing the sequencing of a mixeduse development must not be unduly rigid.

10 Enforcement Any use being enforced against must be precisely defined, otherwise the notice may be a nullity. The materiality of any alleged change of use must always be considered, even in the absence of permitted development rights or any specific exclusion from the definition of development.

11 Lawful Development Certificates An LDC cannot be granted for works that would contravene an extant enforcement notice. LDCs for uses that do not fall into a Use Class need to be carefully framed. Internal alterations to buildings to create more floor space do not involve development. The Commission will assess whether proposed access lanes on farms are agriculturally related.

12 Costs Awards

13 Scope Appeals against refusal of planning permission Appeals in default of a planning decision Listed building, conservation area and hazardous substances consent appeals Enforcement notice appeals Lawful development certificate appeals Appeals concerning reviews of mineral planning permissions (not yet in force)

14 Out of Scope Appeals under the 2011 Act not listed on previous slide, for example submission notice appeals Appeals against decisions made before April 2015 Appeals under subordinate legislation, for example advertisements and removal of protected trees Hear-and-report functions examinations, public inquiries and hearings Functions under non-planning legislation, for example roads and environmental appeals Appeals to the Water Appeals Commission

15 Extent of Power Does not depend on appeal procedure hearing, accompanied site visit, written representations Can be awarded where a hearing was arranged but does not take place We will award costs only where there is a claim

16 Parties Awards may be made in favour of or against any party, including objectors or supporters A statutory consultee is not a separate party The Commission is not a party we can t reclaim our own costs

17 Purpose The 2011 Act doesn t specify in what circumstances costs should be awarded Clues in Assembly debate and explanatory memo Intended to provide redress when one party has put another to unnecessary expense because of unreasonable behaviour Should encourage responsible behaviour

18 Circumstances where Costs may be Awarded The appeal is within scope A party has made a timely claim The party claimed against has behaved unreasonably The unreasonable behaviour has caused the claiming party unnecessary or wasted expense See Paragraph 12 of the Commission s guidance document

19 Timeliness In written representations appeals, any claim must accompany the final written submission Claims arising from behaviour at an accompanied site visit must be submitted within five working days Where a hearing takes place, claims must be made as soon as practicable after the behaviour that triggered the claim Where an appeal is withdrawn or a hearing is cancelled, claims must be submitted within 10 working days of notification being sent

20 Reasonable Behaviour Disagreement is not inherently unreasonable Costs will not necessarily follow the appeal result Where all parties have behaved reasonably, they can all expect to meet their own costs The ordinary, everyday meaning of reasonableness will be applied

21 Potential Unreasonable Behaviour Example 1 causing an unnecessary appeal Example 2 prolonging proceedings Example 3 abandoning or not pursuing part of case Example 4 withdrawing or conceding an appeal But whether there has actually been unreasonable behaviour is always a matter of judgment Examples given above are not exhaustive

22 Potentially Unnecessary or Wasted Expenses Employing an agent to submit the appeal Assembling background documents Employing someone to prepare written evidence and/or appear at a hearing Using the services of professional experts to advise, prepare written submissions and/or attend hearing

23 Ineligible Expenses Expenses unrelated to the appeal Expenses incurred at application stage Indirect losses, such as those resulting from a delay in obtaining planning permission

24 Making Costs Claims Keep separate from statements of case and rebuttals and label clearly Provide all the information set out in Appendix 2 to the Commission s guidance document Explain fully the reasons for claiming Explain why the expenses being claimed were originally incurred

25 Responding to Costs Claims Claims submitted in writing will be copied to the party being claimed against That party will have 10 working days to respond (five where the claim arose from a site visit) If a claim is submitted during a hearing, the party claimed against may respond orally or may be allowed to do so in writing within 10 days

26 Costs Decisions Separate from appeal decision Normally issued at the same time as appeal decision, unless appeal has been withdrawn Factual disputes resolved on balance of probability

27 Possible Outcomes Full award claimant s entire expenses from beginning to end of appeal process Partial award where only some costs are claimed or where a claim for a full award is allowed in part Examples of partial awards one issue, one person s involvement, one part of appeal process No award where any of the conditions set out in Paragraph 12 of the guidance are not met

28 After a Costs Decision Costs order will not specify a precise sum Amount can be agreed between the parties or referred to the Taxing Master in the High Court Costs orders can be enforced as a civil debt Costs orders are covered by our complaints process and susceptible to judicial review

29 Claims Considered 1/4/15 31/10/17 By appellant against authority 40 By authority against appellant 24 By objectors against appellant 8 By objectors against authority 1 Against objectors 0 TOTAL CLAIMS CONSIDERED 73

30 Costs Decisions 1/4/15 31/10/17 Full award 3 Partial award 8 Denied 62 TOTAL DECISIONS 73 Overall success rate 15%

31 Reasons Claims were Denied Ineligible 7 Out of time 5 No unreasonable behaviour 47 No unnecessary or wasted expenses 3 TOTAL CLAIMS DENIED 62

32 Reasons for Making Partial Awards against Authorities An authority withdrew a refusal reason in the course of an accompanied site visit. An authority changed its reasoning in support of a planning condition at statement of case stage.

33 Reasons for Making Partial Awards against Appellants An appellant submitted an inaccurate land ownership certificate and, following an inconclusive hearing, withdrew the appeal. Appellants, having submitted a revised application, waited 2½ weeks before withdrawing their appeal at a time when statements of case were in preparation. An appellant withdrew three grounds of appeal against an enforcement notice in his statement of case. In three cases, appellants did not appear at proceedings they had requested and gave no prior warning of their nonattendance.

34 Reasons for Full Awards An authority refused permission on flood risk grounds, contrary to officers advice, even though the site was not in a flood plain and there was an extant permission for similar development. An appellant, having sought professional advice only after he lodged his appeal, then withdrew it, putting the authority to unnecessary expense on administrative and professional work. An appellant lodged an appeal without first ascertaining who owned the site; by the time he withdrew it the authority had prepared its statement of case and rebuttal evidence.

35 Lessons for all Parties Carefully assess at the outset whether you have a reasonable prospect of success. React in timely fashion to changing circumstances. Present credible evidence to support your case. Read the Commission s guidance!

36 Any Questions?