Third Party Appeals

The Conservative Green Paper, “Open Source Planning” proposed to introduce a right of appeal against planning decisions for third parties. Developers are worried. “It will be a nimby’s charter”. “CPRE will have a field day.”

Eric Pickles certainly wants to give more weight to the views of local residents. When developers won consent for development in the grounds of the former Warley Hospital on appeal, he argued on his website that the views of councilors and residents should not have been overturned by the Inspector – even though the planning officer conceded there were no valid grounds for refusal.

But third party appeals will only arise where the council has given consent for a development which local residents do not like.

The Green Paper says:

“…… we will limit the grounds for appeal against a local planning permission to just two:

1. that correct procedure was not followed in assessing the application, or

2. that the decision reached is in contravention of the local plan.”

We have few problems with the first point – aggrieved parties can already seek judicial review (JR) if they believe due process has not been followed. The appeal will be before a Local Government Ombudsman – which should be more straightforward, cheaper and accessible than the High Court for a JR. However, past experience with JRs suggests that people will dig up the most obscure procedural points that have little bearing on the decision under appeal. We hope the ombudsman will be able to take a pragmatic view and disregard minor technicalities if they did not materially prejudice the decision.

Again, we have no issue with the second point on matters where the local plan is unequivocal – for example no building in the green belt and limits on building heights and densities. But we have concerns where the criteria are not so cut and dried – for example where plans seek development “in keeping with the character of the area”. With the best will in the world architects and public cannot agree what constitutes good design. So anyone with a gripe about any development will be able to appeal on the grounds of poor design.

Likewise many local plans seek a certain percentage of affordable housing. Many of the target figures are now simply not financially viable. So any developer who quite reasonably negotiates a lower percentage of affordable housing will be open to third party appeal for not complying with the plan.

So we share some of the concerns of the development industry. We know there are single issue groups who will oppose almost any development. (I was indirectly involved with the King’s Cross scheme and I know the problems objectors can cause – and how much the ensuing delays and legal fees can cost the developer.) No-one living near a new scheme will countenance any loss of a view or amenity – without very good reason and/or substantial benefits (e.g. free land for a garden extension or a new village social club).

Quite apart from people who object on principle or those that wish to protect the value of their property, we have come across people who have sought judicial review just to make a nuisance of themselves to get the developers to buy them off.

We have no instant solution to these problems, but we believe government should look at limiting appeals to criteria in the local plan where it can be shown unequivocally that the proposed development does not conform. And perhaps such appeals should be limited to those with a beneficial interest in the outcome – rather than give a free rein to single issue lobby groups and those with little or no connection with the area.