The basics #19 - how many planning appeals win?
Wow. What a time to be alive. I expect you all - like me - are still riding those heady highs from this week’s Sunak-Starmer televisual bonanza. Ah, what a treat it was. Such courtesy. Such a sensible format. Really fostered a grown-up, sober exchange of ideas [Ok, I think they get it, Ed.].
But at least for this week, until the parties come out with some plan-ifestoes to dissect (what will Farage say about 4 year housing land supply?!? We all want to know)… Let’s put politics to one side. A change of pace. Can I interest any of you in some cold, hard facts?
So. Right. To start at the very beginning: when a planning application doesn’t quite work out your way, many thousands of us every year resort to planning appeals. Normally - at least for the purposes of this post - we’re talking about appeals under section 78 of the Town and Country Planning Act 1990 to the Secretary of State against decisions to refuse planning permission (Other sections are available, Ed.). In reality, almost all appeals are decided not by the Secretary of State her/him-self, but by Planning Inspectors at PINS. We’ve talked about them a bit before.
It is a truth universally acknowledged that planning baristas up and down the land are asked to advise - several times a week - on the prospects of particular appeals succeeding. It’s a big bit of the job. It’s the elephant in the room in so many of our meetings - “that’s all very “interesting”, Zack [said with barely disguised sarcasm] but… are we going to win, or are we going to lose?”. That kind of thing.
It’s fair question, right? So you’d think. Fair. Sure. But not straightforward.
So. Let’s look into it. How many planning appeals actually succeed? And how many fail? [NB source material for what follows is here].
Short answer - how many appeals succeed? Around 30%. But that’s a number which doesn’t tell even close to the full story…
There are normally around 10,000 - 12,000 planning appeals a year. Over 90% of ‘em - so between 8,000 - 10,000 - are determined through the written representations procedure. Around 5% - so normally 500-600 a year - are determined through hearings. And the tip of the iceberg - around 2-3% of inquiries, so around 200-300 every year - are determined at planning inquiries. Which procedure you get depends on the criteria here (generally, the more complex or controversial your case is, the more likely you are to get a hearing or an inquiry). More detailed guidance on the 3 procedures is here.
Of that overall 10,000-12,000 – only around 6-8% - circa 1,000 a year - are for “major development” (e.g. 10+ houses, major manufacturing storage, retail, warehousing or distribution etc.). So actually a pretty small number. The rest involves minor development, changes of use (which is the most prominent kind of planning appeal), and householder applications.
Of those major development appeals, over 1/2 relate to housing. We’re talking about around 500-700 appeals for major residential development a year (10+ homes). And those appeals are doing some heavy lifting. On average, since 2010, those appeals have yielded permissions for 20,500 homes a year. Plus another 2,250 a year for minor dwellings. NB since 2010 total permissions for housing nationwide has averaged around 260,000. So the point is that a very small number of appeals has been consistently responsible for almost 10% of the houses granted planning permission every year.
So - what proportion of these appeals for major residential development are succeeding? Overall - 45% (which is over double the success rate for residential schemes of under 10 units). But there are a couple of important caveats:
First, around 60% of the actual homes applied for in major housing applications are being allowed, so e.g. in the most recent monitoring 61% of the 39,430 homes brought forward on appeal were allowed, i.e. 24,159 homes. Which means, in a nutshell, that some large schemes are getting through.
Next, there is an enormous difference depending on the procedure you get allocated. Since 2010, the overall % rate for:
(i) Written reps appeals has been 29%
(ii) Hearings has been 43%
(iii) Inquiries has been 54%. But NB in the most recent full monitoring year, 63% of appeals determined at planning inquiries succeeded (compared with 27% in the same year for written reps). Which is the highest it’s been since the early days of the 1st NPPF.
NB of course a greater proportion of larger major residential applications are determined at inquiry, which partly helps to explain why their success rate is so much higher.
Another important variable: a Lichfield Report here found that of the appeals for 50+ homes in 2017 across England Wales and Scotland, those cases where refusals had followed officer recommendations to refuse succeeded 40% of the time. But appeals against refusals made against officer recommendations to approve succeeded 65% of the time.
That’s before we even get into the approval records of individual planning inspectors which can vary starkly.
Numbers can be so seductive, can’t they. But in the end, I agree with Simon Ricketts’ cautious approach to the figures in his post here, and in particular that cases where you can comfortably advise that prospects are better than 65% - even in a very strong case - will be few and far between. One thing planning barristers all have in common - we’ve all won cases we expected to lose, and we’ve lost cases we expected to win. Planning Inspectors are, in the end, human beings [Surely not!, Ed.]. Not algorithms. Not planning robots. A site or a scheme which strikes you one way may strike them completely differently. And that’s before we get into politics. Changing policies. Changing ministers. Oh my.
One thing’s for sure. If the polls are right and Labour do prevail, then getting anywhere close to 1.5 million homes in the first Parliament (which would require housebuilding at a rate we haven’t seen since the 1970’s) is going to require some Herculean efforts - including from the good folks at PINS - and (inevitably) more appeals, and more successful appeals. But. Well. We’ll find out about that soon enough.
In the meantime, thank the Lord, we’ve yet more TV political debates to look forward to in the coming weeks. I just can’t wait. Stay well, #planoraks. I hope you’re able to tune some of the noise out. Enjoy these early days of Summer. And, whatever else you do, (unless, of course, purdah prevents!), do your level best to #keeponplanning.
