Beyond the headlines: the independent review of planning appeal inquiries

Beyond the headlines: the independent review of planning appeal inquiries

The outcome of Bridget Rosewell’s independent review of planning appeal inquiries has triggered a series of headlines focusing on, and welcoming, the proposals to cut the time taken for planning inquiries by half. 

The headlines are based on recommendation 21 of the report published on 12 February 2019, the which states that:

 The Planning Inspectorate should adopt the following targets for the effective management of inquiry appeals from receipt to decision:

  1. Inquiry appeals decided by the Inspector

Receipt to decision – within 24 weeks - 90% of cases

Receipt to decision – within 26 weeks - remaining 10% of cases

  1. Inquiry appeals decided by the Secretary of State

Receipt to submission of inspector’s report - within 30 weeks - 100% of cases 

Those targets compare favourably to the finding, set out at the start of the report, that for the period of 2017/2018, the average time from receipt of an appeal to decision by an inspector following an inquiry was 47 weeks (and longer for recovered appeals and inquiries into called-in applications).

The government has also been quick to say that speeding up decisions in this way can help the government achieve its ambition of delivering 300,000 homes each year by the mid-2020s.

However, what lies beneath the government spin is more nuanced and deserves further commentary. 

On the aspect of housing delivery, it is of note that the government’s terms of reference required that the review should focus particularly on the role of planning appeal inquiries in major housing schemes. Nevertheless, the review does not make any specific findings in respect of how inquiries into such schemes in particular could be improved. It simply notes that for the period of 2017/2018, 18,600 residential units were approved following an appeal inquiry. This represents just 5.4% of the 347,000 total approved residential units. However, the government's press release fails to mention that there is a significant and currently unaddressed gap between the amount of housing schemes which obtain planning permission and the number of housing schemes which are built out– an issue which was subject to its own independent review, led by Oliver Letwin. That review reported its final conclusions in October 2018, and a response from government on the recommendations to increase the rate at which housing is delivered on large sites is still awaited. See our analysis on that review here (LexisPSL subscription required).

 In terms of the target decision deadlines themselves, the review is clear that they are only achievable if the suite of improvements recommended in the review as a whole are taken forward. Those improvements are far-reaching, and while many are long overdue, particularly those which encourage PINS making better use of technology, and thereby increase efficiencies, many are to a certain extent down to a lack of resourcing, and ultimately, funding. For example, the review makes clear that the lack of availability of inspectors to take on cases is one of the main reasons for delay in the inquiry procedure. Nevertheless, key recommendations include that:

  • in every inquiry appeal case, there should be effective case management engagement between the inspector and the parties, following which inspectors should issue clear directions to the parties as to the main issues, the final stages of inquiry preparation and how evidence will be examined
  • inspectors should be more proactive, and take a more directional approach, to ensure witnesses don’t unnecessarily repeat evidence or give verbose responses, to steer parties in the right direction when time is being wasted, and step in when barristers unnecessarily waste time cross-examining to undermine the other side’s witnesses
  • inspector’s workloads are managed to ensure there is enough time to write up their reports immediately after the close of an inquiry

While these are all sensible recommendations, they very much depend on inspectors having capacity to undertake those additional case management roles. And in that regard, the review does not make any suggestions for how that extra capacity will be created (and presumably is not able to, as that is outside the scope of its terms of reference). It recognises that PINS faces a considerable challenge to resource all areas requiring experienced inspectors adequately, and notes that PINS is already implementing a number of measures to improve inspector availability, including running a recruitment campaign and establishing productivity and performance improvements to ensure the use of the existing (and future) workforce is maximised. However, it is really up to the government to ensure that the resourcing issues identified can be properly addressed by PINS, to ensure the target decision deadlines which it says will help meet its ambition to deliver the required housing can be met. 

What is perhaps most noteworthy about the conclusions of the review is that, rather refreshingly, there are no sensationalist statements that the planning inquiry system is ‘broken’ and needs a root and branch overhaul. Instead, the report gives a balanced view on the strengths and weaknesses of the process. It highlightsthat stakeholders value the quality of inspectors and their decisions, the fairness which is afforded to parties, including members of the public and others unfamiliar with the inquiry process, and the fact that parties are able to present evidence orally and have it rigorously tested. It then makes pragmatic proposals to address procedural inefficiencies.

Our more detailed analysis of the review is available here (LexisPSL subscription required).

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About the author:
Sarah worked in planning departments at several city firms, including SJ Berwin, Wragge Lawrence Graham and Norton Rose Fulbright, before joining LexisNexis UK in January 2017. She has experience of planning and compulsory purchase law and regularly advised landowners, investors and developers on all planning law aspects, with a particular focus on large-scale development, regeneration and infrastructure schemes. Sarah also has considerable experience conducting planning-related legal proceedings.