AGENDA ITEM 7

BOROUGH OF POOLE

PLANNING COMMITTEE

26TH MARCH 2009

REPORT OF THE HEAD OF PLANNING DESIGN AND CONTROL SERVICES: PLANNING APPEALS – MEMBER INVOLVEMENT:

1.PURPOSE

1.1At its Meeting on the 22nd January 2009 this Committee considered a Report dealing with Costs Awards and changes to the Planning Appeals system (Minute PC74.09 refers). This Report sets out how Councillors are informed when appeals are lodged and clarifies arrangements when appeals are lodged following the overturning of recommendations at Committee.

2.DECISIONS REQUIRED

2.1That the Committee:-

(i)agrees that in the event of a recommendation being overturned at Committee, the precise wording of any refusal reasons be delegated to the Head of Planning and Regeneration. In those cases involving particularly significant or contentious decisions the Head of Planning and Regeneration will have the discretion to ask the next available Planning Committee to endorse the wording of any refusal reason(s); and

(ii)endorses the need for Members to represent the Local Planning Authority in appeals where the Planning Officer is unable to act as the professional witness and that this be the Chairman/Vice-Chairman and/or the appropriate Ward Councillor, together with an external consultant should that be felt to be necessary.

3.BACKGROUND/INFORMATION

3.1Members will be aware that, whenever a planning decision is made to refuse an application or to approve, subject to conditions, there is a right of appeal for the applicant.

3.2The Council currently receives in the order of 150 appeals each year with the majority being decided either by the Written Representations route or via a Hearing. In only a limited number of cases is a Public Inquiry considered to be necessary. As the January Report pointed out, the responsibility for determining the route that an appeal takes will shortly be transferred to the Planning Inspectorate and out of the appellant’s hands.

3.3Members will also be aware that a potential liability for costs attaches to each and every reason/condition and each and every part of every reason and condition. The Local Planning Authority has to be able to demonstrate that the grounds for refusal are reasonable and defensible. If it fails to do so then a claim for costs can be made by the appellant. The expectations in terms of evidence and behaviour are set out in what is currently Circular 8/93 but this will be replaced later in the year when new Circular advice is introduced.

3.4Officers make recommendations to the Planning Committee and Members determine the application in the light of the evidence, representations, policies and guidelines.

3.5If Members choose to overturn the Officer recommendation then it is important to articulate clearly in advance of any vote what the reasons are for rejecting the proposal so that Councillors and members of the public fully understand the Local Planning Authority’s position in the matter. Often this can be easily deduced from the debate and Officers are able to advance the outlines of any reason for refusal prior to a vote being taken and the detailed wording is detained by the Head of Planning. Otherwise the correct approach is to delegate the formal decision to the Head of Planning who will construct the detailed wording, often in consultation with the Chairman, Vice-Chairman or Ward Councillor. If the case is particularly complex or the reason for refusal is considered to be marginal or perverse then the expectation is that the Officers would report back to a subsequent Committee with recommendations as to the form and content of the refusal reasons.

3.6In the event of an appeal being lodged all Members are advised within 14 days so that they can decide whether or not to make representations on behalf of constituents. In the event of Hearings and Public Inquiries further advice is sent out once the venue and date has been agreed with the Planning Inspectorate.

3.7Where Written Representations are concerned Members may support the Local Planning Authority’s reasons for refusal but best practice is to discuss the case and issues with the Planning Officer concerned to ensure that the Member input is with the consistent with the stance being taken by the Planning Authority and in line with policies and guidance.

3.8Where a decision is appealed by way of a Hearing or Public Inquiry, in the vast majority of cases the Planning Officer will deal with the case regardless of whether or not the decision results from an overturn of a recommendation at Planning Committee. There is often some confusion about the role of the Planning Officer in such cases. The Planning Officer is the adviser to the Local Planning Authority and is generally able to use his/her professional skills to put forward a cogent defence of the Planning Committee’s decision. It in no way weakens the Council’s case by having the same Case Officer give evidence. Some appellants may choose to try and make capital from the fact that the recommendation was overturned but Planners and Planning Inspectors are well used to these tactics and they carry little or no weight in the determination of the appeal itself. What matters in every instance is the content and quality of a Local Planning Authority’s evidence.

3.9There will be the occasional case where the Planning Officers conclude that they are too intimately involved with the scheme and the recommendation to give evidence on behalf of the Local Authority, in which case a colleague may be asked to take on the appeal. There may also be the occasional appeal where Officers firmly believe that the Local Planning Authority’s decision is not defensible.

3.10In such a situation the Planning Officer is barred by their Code of Professional Conduct from giving evidence that is not their properly held professional opinion. The Officer can give the factual background in terms of site descriptions, planning history and planning policy but may not give evidence that goes into the planning merits.

3.11That is where the Member role becomes critical. In cases where a recommendation is overturned and Officers anticipate that it will be difficult to provide a professional planning witness the expectation should be that Members of the Planning Committee would act as witness for the Local Planning Authority. Conventionally, this might be the Chairman or Vice-Chairman but it might be that a Ward Councillor would provide a better witness. In those circumstances Officers will work with Members to articulate the various arguments that might be advanced but it will be for the Members themselves to defend the position in front of the Planning Inspector and in the face of cross-examination.

3.12Such events are, thankfully, rare but it is important to have some agreed protocol / understanding of how they will be handled when they next arise – hence this paper.

3.13Finally, Ward Councillors are advised by e-mail of the outcome of all appeal decisions and Members will be aware that there is a summary report to Planning Committee on a monthly basis. Those reports highlight cases where there has been an overturn at Committee.

3.14It may be of interest to note that the Council has an overall success rate at appeal of approximately 65%. Where an appeal has been lodged following an overturned recommendation at Planning Committee the success rate is still around the 50% mark which demonstrates the way in which reasons for refusal are framed carefully and also the skills of the Planning Officers in advancing arguments to support the Local Planning Authority’s decision.

Peter Watson

Head of Planning Design and Control Services

Contact Officer: Peter Watson, Head of Planning Design and Control Services

Tel: 633310 Email:

1