Planning fairly - the rules of the game
What makes planning decisions fair?
What with one thing and another, changes are coming at lighting speed to the way we make planning decisions.
For LPAs, the new regulations (which I link to here, together with blogs which explain their effect) are in force, and brave authorities like Kensington and Chelsea have already kicked off virtual committee meetings, apparently with great success. Bravo!
The Planning Court has adapted at fantastic speed. I did a remote hearing back in mid-March, well before lock-down, and we already have guidance from Mr Justice Holgate on how to make virtual hearings run smoothly. Bravo!
The Planning Inspectorate is taking its time. They’re “trialling” new tech with some pilot inquiries / hearings, but only a few, only simple uncontroversial cases, and not until May. The key hurdle PINS are grappling with - see their 1st April update - is how to do all of this “fairly”.
Fairness. It’s obviously critical for all users of the planning system. But what does it mean? And is it really such an obstacle to virtual decision-making?
As some of my Landmark colleagues explain in this cracking paper on how appeals can continue remotely, fairness can mean different things in different circumstances.
This is not a post about how to follow procedural regulations because (as we’ve seen already this month), those can change and change quick. The question is what basic minimum standards of fairness the High Court will impose on our brave new world of decision-making.
The courts have made clear that the rules of fairness aren’t written on tablets of stone.
But to keep it manageable, here are just 5… not commandments. But 5 basics:
Notification: people who may be affected by an application / appeal should be told it’s happening. Notification requirements are set out in the DMPO, and in LPAs’ statements of community involvement. Requirements to serve physical notices on neighbours in person, or to post local site displays are obviously complicated by social distancing rules. But those requirements could be changed to e.g. more mail-drops or online notifications etc. without offending against the fundamental principle, i.e. that those who are affected should be notified.
Consultation: obviously right at the heart of any decent planning decision-making. The law on this is clear. To be proper, consultation must be undertaken when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the final decision is taken. These are the Sedley criteria, and they have the Supreme Court’s stamp of approval.
Being heard: fairness does not always mean a right to be heard orally. It depends. Of course, delegated decisions and written reps appeals don’t involve “hearings” at all. Most committee meetings are open to the public (whether in person, or now over the Internet), but that doesn’t mean that particular members of the public have a statutory right to speak. They normally don’t. The position is different for applicants, who should be given an adequate opportunity to put their case at committee meetings within the procedures fixed by the LPA’s constitution and standing orders. For appeals, allowing the public to speak at planning hearings or inquiries has been a long-standing feature of the process. But that right is not guaranteed. Again, written reps appeals, nobody is “heard”. For inquiries and hearings, allowing members of the public to contribute is in the inspector’s discretion. To meet the urgency of these strange times, a procedure which allowed the public to make written comments on the appellant’s evidence for hearings/inquiries (as they do now), but not always to be able to address the inspector orally might not be universally popular, but it could certainly be fair.
Knowing / rebutting the opposing case: in Planning appeals when the other side is setting out a contrary argument, any of the main parties (i.e. the Appellant, the LPA, or any Rule 6 party) is entitled to know the case it has to meet and to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case: see the Court of Appeal’s decision in Hopkins.
A reasoned decision: most forms of planning decision are already required by law to have reasons. For the one where there is no longer a statutory duty - i.e. grants of planning permission by LPAs - the Supreme Court has imposed one anyway. Safe to say that whatever the forum - delegated officer decisions, virtual committee decisions or (most certainly) Inspector decisions of any stripe - reasons should be given.
So here’s the question:
With LPAs pressing ahead with remote decision-making, with courts already holding multi-week multi-party trials including cross-examination and the rest over video, when even the Grenfell inquiry (for which access and participation by vulnerable people is a critical imperative) poised to continue digitally, what exactly is it in the law of procedural fairness that is proving such a road-block for remote planning appeal hearings or inquiries?
Let’s hope, as David Elvin has said, that MHCLG gives PINS an urgent steer with some regulations to get the wheels of planning appeals turning again as soon as possible. Appeals will have a vital role to play in getting the UK building again once we emerge from these strange times.
Stay well #planoraks, and happy Easter.
