When in doubt, choose change. I cannot say whether things will get better if we change; what I can say is they must change if they are to get better.
Georg C. Lichtenberg
I am honoured to be asked to contribute a blog to the Women in Planning blog series. I have been asked to assemble some thoughts on improving the planning system.
This blog is written against the backdrop of the abandonment of the overhaul of the planning system in the Planning for the Future whitepaper in favour of the more minor changes proposed in the Levelling Up whitepaper. Changes to the planning system identified in the Levelling Up whitepaper include: simplification of local plans to make them easier to engage with, a new model for infrastructure levy, supporting town centre regeneration, improving democracy and engagement in planning decisions and supporting environmental protection through planning. The government's chief planner has announced (via the February 2022 Planning Newsletter) that we can expect a further update on approaches to changes in the planning system in the spring.
Whilst the intention for a complete overhaul by way of new legislation has been abandoned, it is pertinent to note that as much of the planning system is a creature of policy rather than legislation; fairly radical change could be instigated without making legislative change.
Rather than propose an overhaul of the system I have tried to identify three straightforward steps which, at least in the opinion of this author, will have real practical impact on everyday appeals.
1. Funding
There is an obvious case for the introduction of a planning appeal fee. At present, unlike any other area of litigation which requires the payment of a court fee, there is no fee to appeal a refusal of planning permission.
The introduction of such a fee is an obvious way to secure reliable funding for PINS. Fees could be set at levels to reflect the size and complexity of case and mode of appeal (written representations, hearings, inquiries). Modest fees could cover householder appeals (for example) and the highest fees could relate to big housing appeals where inquiries are anticipated to last for several weeks.
2. Better Use of Remote Technology
In many respects this idea is already being explored as Covid secured the introduction of video conferencing technology for the determination of appeals. It seems that CMCs by way of MS Teams are here to stay (an innovation this author welcomes).
The use of blended events assists in diary management with experts often having better availability by video call than in-person. The same applies for advocates when the need arises to find additional sitting dates.
The position is not universal but some members of the bar with caring commitments find the option of a remote inquiry preferable to an in-person event.
Much work is already being done to make effective use of remote technology. What is required is clearer policy and procedure regarding when remote technology can and should be used in a hearing or inquiry. A point of focus needs to be ‘equality of arms’. When, for example, would it be appropriate for one side’s advocate to be remote but not another’s? Should both advocate and witness be remote either remote or in-person or would it be fair and appropriate for one to be in-person but not the other?
3. Presumption in favour of costs on an allocated site refusal
Finally, I turn to the issue of costs. In my view there is one simple change to policy that can take place almost immediately: a presumption in favour of costs on an allocated site refusal. In other words, the burden would be on the LPA to demonstrate reasonable behaviour in order to avoid an award of costs.
Where there are good planning reasons for a refusal and there has been constructive dialogue then of course under such a presumption a refusal can proceed without fear of costs.
It is too often the case that permission on an allocated site is refused on poor grounds or on overly technical grounds which are clearly capable of resolution were further discussion to take place and/or further evidence to be produced.
It is entirely sensible to approach costs from a different starting point where the principle of development is accepted. Indeed, such an approach may focus minds on the difference between achieving a satisfactory planning solution for the site and pursuing points which may be desirable (from the LPA perspective) but are not necessary to make the site acceptable in planning terms and/or not founded in policy.
Author: Constanze Bell
Constanze is a barrister at Kings Chambers and has a varied public law, planning and environmental law practice. She is ‘up and coming’ in the field of planning law (Chambers & Partners 2020) and a 'leading junior' in regulatory and licensing law (Legal 500 2020). Constanze is one of the 'Highest Rated Planning Juniors under 35' (2020 & 2019 Planning Resource Planning Law survey) and has been named Women of Influence for 2022 in the Planner.