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Third party appeal: a fresh perspective

August 20, 2010

A piece in this week’s Planning says that arguments against third party rights of appeal are based on ‘myths’…

Environmental campaigners said this week that they fear the government will backtrack on pre-election plans to allow the public right to appeal against planning permission.

Many within the planning and development sectors are likely to breath a sigh of relief at this, with third party rights of appeal often seen as a likely to cause chaos and halt developments at the whim of local NIMBYs.

But would this be the case? The article defends third party appeals saying “such rights have not stopped Australia from enjoying sustained periods of economic growth in recent years. Nor did they prevent Ireland’s recent property boom, involving a 70 per cent increase in the rate of house building between 1995 and 2001.”

“In reality, new development will continue to happen but a public right of appeal significantly increases public influence over it.”

So is it time for a fresh look at the issue and are “developer interests” deliberately muddying the debate?

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31 Comments leave one →
  1. Gherkined permalink
    August 20, 2010 10:57 am

    Hopefully there’s someone here with expert knowledge of the Australian planning system, but my dim memory of it is that it is very much based on plan led zoning. So once we get our plan-led system up and running….
    And I’m not sure we should be using Ireland’s housing boom as a template for a good planning system – huge availability of land, vested interests, oversupply of housing, lack of supporting infrastructure.
    I’m not dogmatically against third part rights of appeal, but I can’t see how it would improve the quality of development we could get out of the current system. I prefer the idea of engaging communities early and all the work it entails. And (although it pains me to say it) I’d take every single other thing in Open Source Planning if this was removed from the table.

  2. Roger permalink
    August 20, 2010 11:00 am

    ……………..the Irish system has had the merit of limiting the role of lawyers in planning. “I saw the UK system…………………….. “It seemed totally different from ours and controlled by lawyers.

    The above says it all really. Keep the lawyers out and you might just have a chance of creating a workable system. Leave them in the process and you’re in to the realms of the nightmare cause by ‘no win, no fee’ trough this country has lumbered itself with.
    I would certainly like to see it tried rather than dismissed out of hand. The planning system has the negative image with the ordinary man in the street, because of its ‘apparent’ bias towards the applicant when it comes to contentious applications, but please, please, please, keep the lawyers away from it.

    • August 20, 2010 12:43 pm

      Hello

      Not sure how to phrase my question properly so apologies to start with;

      You mention ‘apparent’ bias towards the applicant; do you have a specific list of what you think is considered just normal planning practice but which the public commonly misinterpret as bias?

      • Tom permalink
        August 20, 2010 2:45 pm

        People see it as LPA bias when schemes which attract a lot of local opposition get through.

        Try asking your average developer how biased the LPA is! I doubt you’ll get the same answer as the general public would give.

      • Roger permalink
        August 21, 2010 7:19 am

        I think it goes across the whole process depending on who is making the ‘accusation’. One of the most common ones in my experience is where the developer is well known locally and has been working in the area for a number of years ‘No wonder he got his permission, it’s Fred Smith’. This also crosses over to those with any association with Fred, whether it be by working with or for, or simply buying the land from him, as experienced very recently following a DC decision.
        Negative responses also come about when people suggest that something must be done before any permission is given and then see their comments ignored, in their opinion, and the development go ahead anyway.
        The most dangerous one, in my opinion, is when the council itself is set to gain in some way, especailly where members have become very vocal at committee and have sent the officers away to negotiate better terms for the s106.
        The fundermental problem here, is that the public actually objected to the principle of development, whilst members moved past that very quickly and focussed on the details and the benefits. once you’ve agreed in principle to something contentious, there is always a danger of appearing to be doing it for the benefit of somebody, be it the developer or the council, and not the community.
        I think the possibilty of 3rd party appeal would, whilst increasing the workload, almost certainly make both officers and members think much more carefully about the principle before getting bogged down in the detail. The risk of 3rd party appeal would also encourage better communication with those directly effected by a proposal. Too often we see a hit and miss approach to the process of informing the public and this is often driven by a lack of resources, but misinterpreted as bias towards the developer.

    • Matthew Barrett permalink
      August 20, 2010 5:20 pm

      Everytime I read about someone who wants to keep lawyers out of something it almost invariably means that they can’t be bothered to apply rules correctly or generally do a job with a proper degree of diligence. This I know because of the clients I have who thank me for delivering them from the clutches of shoddy planners who have dodgy agendas at the best of times. The best way to keep lawyers out of anything is to do your job carefully, objectively, independantly and above all professionally. Trouble is that involves good old hard graft, something that appears to be out of fashion.

      • downtowntrain permalink
        August 23, 2010 8:21 am

        I assume you are a lawyer? How many times have you advised clients not to go ahead with a legal challenge because the planners have applied the rules correctly and done their job with due dilligence?

  3. downtowntrain permalink
    August 20, 2010 11:09 am

    interestingly this makes no reference to Paul s comments in the Guardian (http://www.guardian.co.uk/environment/cif-green/2010/aug/19/planning-right-of-appeal-cpre#start-of-comments) about development about “challenging bad development”. As I said on their comments page, people often confuse ‘bad development’ and ‘unwanted development’.

    If we do want to go down this route people will need good planning reasons to appeal and spurious appeals should be screened out by PINS early on.

    • Gherkined permalink
      August 20, 2010 11:56 am

      Thanks for the link to that- good to see a (reasonable) debate going on about this in the wider world too

    • August 20, 2010 1:00 pm

      Not sure if I have noted this before in a comment.

      I re-read the 2005 White Paper recently and was particularly drawn to the paragraph:

      “Development plans must make provision for development. Scotland’s future depends on it. We need jobs, houses, services and utilities to enable the people of Scotland to fulfil their hopes and aspirations as individuals, families and communities. But that does not mean development at any cost or in any place or to any standard. There are consequences from badly located, ill considered and poorly designed development. The growth areas of today cannot become the regeneration priorities of the future”

      The White Paper stated that planning:

      “…should always give the public the opportunity to influence the future development of their communities, and ensure that their voice is heard and considered.”

      It also noted:

      “Decision makers are regularly faced with well argued representations reflecting different, in some cases conflicting, positions. These different perspectives can be equally valid.”

      My comment would be should not all parties have the opportunity to, in a fair and informed way, set out what could well be equally valid perspectives at the relevant stages of the process?

      • Gherkined permalink
        August 20, 2010 2:50 pm

        But they can. Anyone can comment on a plan or planning application and all relevant (i.e. material) comments need to be taken account of. Although only an applicant can appeal a refusal, anyone can ask the ombudsman if an application has been dealt with correctly. People can also complain to a council. Most people don’t get involved in the positive parts of planning as they don’t have time and it usually takes an unpopular development to galvanise people in to action.

        I still hope the answer to this is to get people involved early in the process. The reason third party rights of appeal raises alarm bells with me is that it shouldn’t ever come to that.

        We need development. We need more housing. Necessary development isn’t the same as development a community wants (as downtowntrain has pointed out).

        The devolved government does have a different stance on this than the coalition. The need to support the Scottish economy is given more support in Scotland. The coalition at the moment seems to be more concerned with preservation of existing development than promoting new development in a meaningful way.

  4. Tom permalink
    August 20, 2010 3:10 pm

    Surely better public consultation, more detailed design guides/AAPs and better resourced LPAs would deliver this at the application stage.

    This would be a nightmare.

  5. Necropoolis permalink
    August 20, 2010 4:25 pm

    Actually, if you think about it, this is contrary to both the Localism agenda and the rolling back paperwork agenda. If they are serious about it, then they should remove the right to appeal full stop.

    If Local Councillors are truly representative of local views, then localism dictates that unless in the face of corruption or dishonesty (in which case you have the courts) then decisions should lie solely with them.

    • Roger permalink
      August 23, 2010 11:07 am

      I hear what you say on this and I’m sure many politicians would love to be seen to have so much power! Pre-1948? Truth of it is, without some sort of checks and balances, human nature and local pressure are always a danger. Just a few cases of the public perceiving a decision being based more on the good ol’ boy system than planning grounds and local government becomes even more discredited than it is already (in some peoples’ eyes at least).
      It will be a very long time before elected members come armed with the wisdom of Soloman. until that days arrives, let’s please keep a referee or two on the field of play.

      • Tom permalink
        August 23, 2010 12:10 pm

        I’m inclined to agree with Necropolis here, but for different reasons.

        The emphasis on public involvement and the dreaded localism agenda should be on plan making, rather than on applications.

        We need a faster and more predictable planning system, and if development accords with the development plan then the application system should purely be a regulatory system whereby a certain level of quality is ensured.

        I’m not in favour of third party rights of appeal, as its encouraging people to get involved at the wrong end of the planning system, and removed any degree of certainty in the process, and increases timescales on decisions as you can guarantee any mildly controversial scheme would be appealed against.

        Likewise I don’t think developers should be allowed to appeal against refusals unless they can demonstrate they have fuly engaged with the local community right from the desing stage.

        Localism and public involvement should be firmly embedded in the development plan process, and severely limited in the application process if we want a fast, effective and predictable planning system.

  6. August 20, 2010 7:52 pm

    Necessary development; is there a definition?

    • Tom permalink
      August 23, 2010 10:47 am

      nope, but I can come up with one for popular development, and thats development which does not take place.

  7. August 23, 2010 9:17 am

    Tom, on August 20, 2010 at 2:45 pm

    There does seem to me to be a ‘polarity’ of viewpoints as well. This is oftentimes illustrated when reviewing consultation responses.

    Roger, on August 20, 2010 at 11:00 am

    On balance maybe keep the lawyers in a less adversarial planning process overall. Maybe get their professional bodies to stop them using obvious ‘American soap’ tactics though – annoying and detracts from quality of process.

    Roger, on August 21, 2010 at 7:19 am

    Thanks for the comments.

    Principle of development is a biggie but the system seems to be moving at all costs to establish principle as quickly as possible with no third party check to balance this out.

    Gherkined, on August 20, 2010

    Yes, anyone can comment on a plan or planning application and all relevant (i.e. material) comments need to be taken account of. However complaining to the Council and then advancing tthe complaint to an Ombudsman is an extremely limited and unsatisfatroy option when it comes to the complexities of the planning process. The SPSO in Scotland also have limited powers as far as i am aware.

    The scope for people to get involved in things these days is limited with demands on their time, but the planning process is complex in the extreme and there seems a tendency to reinvent the wheel. Why isn’t there a dedicated web site that explains the whole thing clearly with interviews and sketches (live action) and cartoons?

    Getting people involved early in the process requiires a clear setting out of what is expected of all parties. If it is left entirely up to a development interest to consult, what are they trying to achieve? Public support for their particular proposals or testing the principle of development for that area?

    • Gherkined permalink
      August 23, 2010 12:53 pm

      Cathy, I’m not sure I disagree with anything you have said, just that I have a different view on how best to implement changes to the system for the benefit of the whole of society, not just particular interest groups.

      But, to answer some of your points:

      I just wanted to write ‘development’ but felt the need to qualify it with ‘necessary’ to show that there already is a process of checks and balances to help a community determine what that is (through community action or the actions of their politicians and civil servants).

      Of course there is no definition of necessary development. We nationalised the development of land to allow society to have influence over development for a wider interest. Because of the system of government we have, this is guided by our elected representatives, for better or worse. And we live often live to the rythym of the political cycle.

      The system is undeniably cumbersome but if you look at it objectively, I can’t see how you can argue that people couldn’t have the opportunity to be heard within the existing system.

      Individuals can have direct influence, they can ask to be represented, they can organise and assemble, they can make the same points for or against a proposal from plan to development brief to application stage. And there comments are all taken account of and often change the development that then takes place. In terms of time, how long does it take to send an email? Planning offices mostly have Duty Planners to help take people through the process and Planning Aid does wonderful things. There will never be a time where everyone has enough time to be fully involved in planning all the time. They shouldn’t have to be. We should be open and honest enough about what we (planners) do, that communities have confidence in us.

      In all seriousness I love the idea of sketches on a website. You’re absolutely right that we have to find better and less tedious ways of talking to people – and wonder if we can start a sub-group on the for examples of more creative ways of doing this(?) (I managed that paragraph without saying ‘engaging communities/stakeholders’).

      If local authorities could spend half the money on consultation we currently have to spend advertising proposals in local newspapers, we could ‘effectively engage’ radically more than we can at present.

      The issue most people have is not that they haven’t influenced the process but that they haven’t stopped the proposed development. We need to make is easier for people to understand how they can be heard, and be clearer about what we can do with the information they give us.

      And you’re right, it shouldn’t be left to developers to consult – they will not (and we shouldn’t expect them) to “[test] the principle of development for that area”. They’re developers and they are not accountable to the local community in the same way officers and elected represenatives are.

      (I couldn’t disagree more with your statement that “there is no third party check” on establishing the principle of development. If I started writing about that here, I would be here all day).

      To reiterate:
      I’m more than happy for applicants to be able to appeal a decision. I have never seen any evidence that development would be better with a third party right of appeal and that is what I care about as a planner.

      I can see how a third party right of appeal would restrict development further and as a citizen I don’t want to see that as I don’t think that a third party is representative of the views of the whole community. A developer isn’t either, but I don’t believe that’s what their ability to appeal is about. Their right of appeal is to ensure that government isn’t overly restricting a landowners ability to use their land for what they see fit without having assessed all the relevant information.

      As a planner, I’d be happy to strive for the opposite of what the Scottish Government are complaining about i.e. ‘well located, well considered and well designed development’. And I’d add that is should also come forward ‘at the right time’. This could only happen where the views of the broadest spectrum of society are taken on board.

  8. 156 permalink
    August 23, 2010 12:25 pm

    Having read the article over the weekend I tend to agree with Necropolis that the localism agenda should dictate that the right of appeal should be removed altogether. Having more decisions decided by Bristol based inspectors can’t be a recipe for giving more power to communities.

    However, it does seem sensible that there should be some sort of check and balance in place to prevent some politicians from abusing this power.

    Why not therefore make LPAs give forward notice of any application which is not backed up by relevant and up to date (ie signed off by SoS) Devt Plan policies. During this period – say 14 days – the SoS can decide whether or not to call in the application and anyone can make representations one way or t’other.

    Of course, this will require policies to be rather more precisely worded than they currently are.

  9. Gherkined permalink
    August 23, 2010 1:00 pm

    If I hadn’t taken so long to write my last post I would have been able to see the other posts and confined my comments to:

    I agree with Tom and 156 (and Cathy, to some extent)!

  10. Roger permalink
    August 23, 2010 3:01 pm

    As a general point, I couldn’t agree less with the belief that everything can be managed through well written plans and policies. If you could run planning like that, then why not everything else? Which then of course leads to the question, if it’s all in the book, what’s the point of democracy?

    That’s what I thought development control was all about when I first became involved – there it is in black and white, all I have to do is endorse the policy stance (whether it be for or against, at committee). I soon realised just how many shades of gray there are inbetween these two extremes and how important it was that people had a chance to voice their concerns.

    Taking the trouble to explain yourself to those who are effected by your decisions should not be seen as a chore, it is our duty.

    Interesting that there should be disagreement about who should be doing the early consultation, given that the previous government were very keen on front loading the process and requiring the developer to seek community engagement at the earliest opportunity. Leave it to cash strapped councils and you are liable to get a planning version of the post code lottery.

    Maybe it would be possible to include a figure in the overall application fee to cover the cost of councils doing the job

    • downtowntrain permalink
      August 24, 2010 10:42 am

      but that wouldn’t ‘front load’ the consultation. no guarantee that every pre-app results in an application.

      As I understand the development management, early consultation with members and the public is vital and allows them to shape development. It’s less about cost then a change of culture.

      There needs to be less concern about causing alarm and getting people worked up. Many planners seem unwilling to release information about a proposal until the application is submitted. A developer once told me that he didn’t see the need to consult with members of the public until he knew what designs he was going to submit. Classic case of missing the point!

  11. 156 permalink
    August 24, 2010 12:38 pm

    Mt experience of DC was that it was actually quite codified internally – but that level of certainty was never actually expressed in the local plan policies. So we had standard ways of doing things that were more borne out of experience than actual policies. So if you had a tricky large extension to a small cottage you went and talked to Mr X who had a good one that he approved 6 months ago. Or if you had trouble on parking ratios you copied a bit of text out of Mrs Y’s committee report a couple of years ago. And so it went on. But the poor old applicant had no idea this was going on.

    Now I’m a consultant and the game is trying to find out these little rules. Most who have been working in the patch for a bit understand.

    So why not have more precise, codified policies?

    Maybe its because LPA planners are reluctant at the end of the day to relinquish power. Or at least the perception of power.

    I agree with the comments about encouraging participation at the start of the process rather than the end. How many letters of objection have you seen that actually raise in-principle issues that really should have been raised at the point the policy was allocated. Then you have to tell them that they can’t object on that ground because the principle has been agreed 5 years ago in a policy document.

    Either we have Devt Plan based planning or we go back to the planning without plans that preceded the 1990 act.

  12. Tom permalink
    August 24, 2010 12:50 pm

    “Many planners seem unwilling to release information about a proposal until the application is submitted”

    Thats because most pre-application discussions are confidential. Its the only way to get developers to engage in meaningful discussions, they don’t want their competitors or the public knowing until an application is submitted.

    Public consultation on applications tends to promote a hysterical response, usually from people who have received notification but not actually viewed an application! Pre-app consulation on not yet finalised schemes is nice in theory, but just leads to massive knee jerk negative reactions rather than a constructive input from the ‘community’.

    • Roger permalink
      August 24, 2010 4:54 pm

      Any developer who uses the cloak of commercial confidentiality is being either lazy or mis-guided. Yes, some of the information might be sensitive, but that is unlikely to the things that wind people up. Keeping it all ‘secret’ until it gets to committee is inviting delay and confrontation. Officers will keep it all out of the public eye unless asked or encouraged to do otherwise for fear of suffering the wrath of the developer. If the applicant wants the process to be as painless as possible then they need to work with all those affected by it. The strength of the committee system is that, even where a developer thinks he has been very clever by keeping everything under wraps until the last possible moment, members can say ‘hang on a minute, what about……..? We need more information before determining this’. If you only give them a chance to say this once it is a valid application and at the committee, then you get what you deserve in respect of delay.

      • Tufted Jake permalink
        August 25, 2010 10:21 am

        I think you’re getting confused between pre-application discussions and planning applications. Keeping applications secret until they get to committee is simply not possible – consultation requirements must be met. In addition, to suggest that officers deliberately keep information on planning applications out of the public eye is, frankly, outrageous. Your last sentence doesn’t actually make sense.

        Keeping pre-application discussions confidential is standard practice, and is sensible for far too many reasons for me to go into here. Local authorities do though generally encourage developers to carry out their own pre-application consultation with local residents. Whether or not the developer does so is of course up to them.

        I AM TUFTED JAKE

      • Tom permalink
        August 25, 2010 10:29 am

        Whatever you may think of developers or their reason for doing so, if they submit things on the assumption that its a confidential request, then the LPA has to treat it as such.

        Apart from anything else the LPA has no right to reproduce or publish drawings which are submitted as preapp, it is a breach of copyright unless explict permission is given by the owner of such drawings.

        Do I think meaningful Preapp discussions and pulic involvement are benfeficial, yes I do. But I don’t think that the onus is on the LPA until an application is submitted.

  13. Roger permalink
    August 25, 2010 11:59 am

    I think we are in danger of having a circular argument here. Yes, of course it is the right of the applicant to have pre-application discussions kept confidential if that is their wish. However, keeping it all under wraps until the last possible moment, must demonstrate a lack of confidence in the proposal in respect of the public reaction.
    Under the current system, such covert behaviour seldom achieves anything other than delay and frustration. Eventually, it will become public and the public will then have their chance to challenge it. However, under the ‘it’s all in the LDF, so it must be okay’ approach, a developer would have everything to gain by keeping it out of the public domain for as long as possible.
    We are trying to do away with big government, so I am loath to suggest that Whitehall should be telling us how to do things in respect of pre-app consultation. However, unless somebody somwhere sets the standard, it will end up as a postcode lottery, with some areas seeing major opposition to the building of anything and everything, whilst others work hard at it and reap the supposed benefits of growth.

  14. downtowntrain permalink
    August 25, 2010 12:25 pm

    The whole point of development management (and my understanding of localism) is to allow and encourage members of the community to get involved and shape development rather than being presented with a development which they can’t change.

    I assume that people have read this document but I’ve attached a link for those that haven’t
    http://www.communities.gov.uk/documents/planningandbuilding/pdf/1419804.pdf

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