Minutes:
The Chairman introduced Ben Linscott, Assistant Director of Planning at The Planning Inspectorate who gave a presentation on the work undertaken by the Inspectorate and how that work impacted on Bromley.
Mr Linscott had been employed by the Inspectorate since 1996, and for the past five years had worked in a managerial capacity where his role involved administering the S.78 appeals service. He had also been heavily involved with changes to the appeals service. Mr Linscott was responsible for overseeing groups of Inspectors, managing their casework and the areas in which they worked.
Members were informed that a particular challenge for both local authorities and the Inspectorate was the rapid change of policies. The Inspectorate strived to ensure that Inspectors were aware of all changes.
Mr Linscott outlined the principles and procedures to which the Inspectorate had adhered since the service began. The majority of appeals were made by written representations but could also be made by holding an inquiry or a hearing. 25,000 appeals were received each year. The principles of openness, fairness and impartiality govern all public decision-making by the Inspectorate. Inspectors need to be clear that the right evidence has been submitted to enable them to reach an informed decision.
Many Inspectors were also planners but this was not a prerequisite for conducting appeals. The law does not require Inspectors to have expertise in the field of planning but they should be capable of making an informed judgement.
200 cases per year were challenged through the High Court where judgement on an appeal was thought to be incorrect.
A thorough review of the appeal process was undertaken 4-5 years ago resulting in a more proportionate process where each category of appeal followed its own procedure. The review also resulted in improved customer focus and better use of resources. Many leaflets and guidance documents on the appeals service were now available to the public via an online planning portal.
Mr Linscott reported that no complaints against decisions had been received since the new procedures had been adopted.
The Advisory Panel on Standards (APOS) which previously measured Inspectors' performance and reported to Ministers was now defunct.
A charging system for appeals was introduced by the 2008 Planning Act but was never acted upon. The Government proposed to implement a charging scheme and a consultation document would be issued early in 2011. The charging scheme would apply to S.78 planning appeals and advertisements but would not apply to enforcement.
As a result of the changes to appeal procedures, no further material can be accepted by the Inspectorate once a Committee hearing has taken place. Only the required documents and case documents (as put previously to Committee) would be accepted. With regard to the Householder Appeal Service (HAS), one main issue of concern was the disadvantage officers felt when their recommendation had not been accepted. To ensure that the Inspector understands the reason for refusal, it should be explained clearly in the minute of the meeting as this is the final document of Committee procedure that is admissible to the Inspectorate.
Mr Linscott reported that 10,000 hours of officer time had been saved since the introduction of the HAS. Any HAS case was available online for the public to view and it was anticipated that the entire service would be available online over the next three years. The number of complaints received in relation to the HAS was lower than for any other casework.
A question and answer session then took place.
Councillor John Ince referred to instances where the Local Authority had refused an application and it had gone on to appeal with a perfectly reasonable decision for refusal. He enquired what weight the Inspector gave to planning authority guidance having cognisance of the GLA guidance which may contain slight differences.
Mr Linscott responded that under S.38(6) of the Planning Act, there must be a Development Plan. Unless material considerations indicate otherwise, applications for development would be decided upon by the Development Plan. The UDP was the Local Authority’s plan and the Mayor of London had the London Plan (which was also part of the Development Plan). It was up to individual Inspectors to decide which of the two development plans should apply. The PPS was the most recent Government policy document to be affected by changes. There was a Development Plan element for every type of case and the Local Authority would need to explain fully why the Local Authority policy had greater weight attached to it.
Councillor Charles Joel commented that the general public were unaware of the charges to be introduced and asked Mr Linscott to quote an approximate figure for the charge for a two storey extension. Councillor Joel also asked who would be liable for costs.
Mr Linscott replied that the Inspectorate does not make policy. Figures would be based upon differing caseworks and would vary if the appeal was carried out by written representations, a hearing or inquiry. The fee would be paid by the appellants not the Local Authority.
Councillor Joel sought clarification that win or lose the appellants would be liable to pay.
Mr Linscott replied that talks were in progress on that subject.
Councillor Mrs Anne Manning raised a concern in regard to the Householder Appeals Service where there were no written representations, hearings or inquiries. She commented that if the Committee decided against officer recommendations, the minutes of the meeting generally did not clarify the thinking behind the reason for refusal.
Members were informed that the proportionality of the S.78 procedure was assessed and found to be excessive and therefore the decision was made to review the process rather than fully repeat it. Representations were usually always the same. In reviewing the process, local authorities were asked to work with the Inspectorate to discuss issues of concern. One concern was the overturn of officer recommendation. The minutes should briefly explain the reasoning so the Inspector could understand the appeal or an appellant would know what needed to be corrected. There had been cases where Inspectors had agreed with officers.
Councillor Mrs Manning reported that in one particular case, an Inspector had picked up on the fact that the Council had not included a transport ground of refusal; he had then introduced one. Councillor Mrs Manning asked why the Inspector had done that.
Mr Linscott said the Householder Appeals Service was a risk. Case Officers were always willing to listen to a special pleading. He said Local Authority officers could talk to his Case Officers. S.79 of the Act gave the Secretary of State and therefore Inspectors, power to address further consultation. Inspectors could not refuse without giving proper consideration to a case.
Councillor Tony Owen was concerned with matters of visual inspection and commented that there were times when one Inspector could make two different decisions on two separate occasions in the same way that two Inspectors could make two different decisions. He stated there had been instances where the wrong decision had been made. Councillor Owen commented that the Inspectorate's 'quality' was geared to time but he was interested in the quality of decision-making. The Local Authority had no way of taking Inspectors to task and he wanted to know how bad decisions taken by Inspectors could be eliminated.
Members were informed that the process undertaken was intended to work by parties putting the best case forward with a description of what was right or wrong. The Inspector should reach a reasoned and reasonable judgement. Mr Linscott said he had visited sites where a decision had not been agreed with. He said the Inspectorate gave good, supportive training to their Inspectors e.g. design skills and competence training. He said the Inspector should have explained his decision. If complaints were received about an individual Inspector, then he would know there was a problem. Mr Linscott’s role was to pinpoint from where the problems emanated. Each case was different and he was always looking to find better ways of measuring Inspector skills.
Councillor Russell Jackson enquired about consistency and the different emphasis placed on design between local authorities. He asked Mr Linscott if he saw trends under different grounds from different local authorities across the country.
Mr Linscott replied that he could not understand why design was not higher up local authority agendas. In accordance with PPS1, local authorities should look to achieve good design; it should be the starting point. The Inspectorate worked to a Design Champion Principle. In that respect, it was up to the leader of a group to imbed designer skills in Inspectors around the country. Inspectors should set design standards high. If there was doubt about a design, then there was good reason to refuse. Unfortunately, design was usually the worst subject for local authorities to explain.
Councillor Simon Fawthrop spoke about the principle of fairness, commenting that the planning system was not fair. If an application was granted, there were no grounds to appeal. Councillor Fawthrop was of the opinion that expertise was the problem not the solution. He stated that where the Local Authority would listen to all parties and judge both ways accordingly, Inspectors would listen to experts but not to laymen. He declared this to be a major problem.
Mr Linscott responded by saying the Inspectorate was moving towards a non-expert model of Inspectors. He said he did not think of himself as an expert but as an impartial individual and stated that at hearings, all individuals carried as much weight as each other and that he listened to all of them equally.
Councillor Fawthrop commented that the online Planning Portal was “appalling” as it only permitted a person to upload 5 mbs of information; one picture alone could take up to 4 mbs. He thought the Inspectorate should do away with set limits.
Mr Linscott replied that the Planning Portal did not belong to the Inspectorate but was a Communities and Local Government (CLG) owned service. He agreed that it was frustrating and recommended that officers direct their concerns to the Portal Group who manage the service. He emphasised that the Inspectorate wanted to work online and was working towards running its own internet service.
Councillor Peter Fookes was glad to learn of the charging system for appeals. He asked three questions as follows: (a) whether the Council could reclaim costs; (b) how many Inspectors there were; and (c) how the work was allocated.
Members were informed that there were 250 salaried Inspectors who were allocated work as locally as possible, usually within a 40-50 mile radius . In this way, Inspectors got to know local policies. They were given cases proportionate to their skills. There were also 80 non-salaried Inspectors who were called upon to conduct lower rated work. The overall cost of casework was an estimated £35m. The Inspectorate needed to save 35% of that figure over the current spending period whilst maintaining quality. Mr Linscott said he could not comment on the matter of charging and claims but information would be available once the consultation period had ended.
Councillor Russell Mellor reported that there was one particular site which was refused on 100% solid grounds. The applicant appealed and subsequently the appeal was won. Councillor Mellor asked for Mr Linscott’s views on this as he thought it made a mockery of planning law.
Mr Linscott responded by saying he could not comment on individual cases but was happy to look into the matter if Councillor Mellor referred the matter to him. Mr Linscott stated that the Local Authority Development Plan held weight under the Act and material considerations came into play. He said that if the Inspector had been irrational, then there was a problem.
Mr Linscott was asked how complaints from particular areas were picked up. Mr Linscott replied that there was no law of precedent. An appeal would be determined on the merits of the case. He declared that he had never been led by precedent.
In answer to the question of what would happen if two Inspectors gave different decisions on the same site, Mr Linscott stated that the onus would be on the two Inspectors to explain why their opinions differed.
Councillor Fawthrop said he could not understand why the cost regime was not pursued more. The appellant could apply for costs if the appeal was won. He stated that the Local Authority should pursue a cost regime. He observed that if an Inspector made an inconsistent decision to another Inspector, then there would be a risk of costs. Fewer Inspectors would save costs. Councillor Fawthrop suggested that if an application had gone to appeal and had subsequently been turned down, then no further appeal should be made on the same site for a period of 10 years. He claimed this would reduce the number of appeals.
Mr Linscott replied that this was something that could be lobbied with the local MP.
The Chairman thanked Mr Linscott for attending the meeting and for giving a very informative presentation.
RESOLVED that the Chief Planner write to the owners of the Planning Portal in regard to the inadequacy of the service provided.