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Legal landscape: Informal hearings - the way forward?


Informal hearings offer a faster alternative to long appeals, and planning inspectors are increasingly adept at dealing with complex issues in these settings, says Stuart Andrews

Inquiries have been the mainstay of the planning appeals process for 50 years. But they are increasingly the most costly and time-consuming option at appeal. 

The procedural changes delivered by the Development Management Procedure Order 2015 mean that, by necessity, appellants are taking earlier decisions as to issues they will agree and what will be the focus of their case. The early appointment of the consultant team means that weaknesses will be identified much earlier and there is far better reaction time to narrow the case.

Inquiries are taking about four weeks to be formally started, some 36 weeks for the case to open and a further six weeks before a decision. This is circa 46 weeks from submission of the appeal to obtaining a decision. Hearings take the same time to formally start, some 12 weeks to the hearing date and about three weeks before a decision. This is circa 19 weeks to obtaining a decision. 

Where a scheme has vociferous third-party objections against it, the ‘safest’ option is to pursue an inquiry to avoid disruption, limit distraction from the issues and to minimise risk. However, it is increasingly clear that hearings have come a long way over the years, as can be seen by the way in which Development Consent Orders and Local Plan Examinations have been conducted successfully and efficiently. 

The Local Plans Expert Group’s report to the communities secretary in March 2016 reviewed the role of the Planning Inspectorate and acknowledged that inspectors “are often called upon to mediate complex issues where opinions are strongly held on either side”.

"It is clear that hearings have come a long way, as can be seen by the way in which development consent orders and local plan examinations have been conducted separately"

This reflects the capacity of inspectors at hearing appeals to deal with complex issues, even where there may be emphatic views voiced from either end of the table.

There are numerous examples of hearings being an effective method for determination, as shown in:

  • APP/E2001/A/13/2193302: Where the Inspectorate took the view that the case should be heard by hearing on the basis of “the complex and technical nature of a matter, air safety, that is the subject of a reason for refusal of the application and about which the Inspector will wish to ask questions of the evidence presented”.
  • APP/D2510/A/14/2228085: Where the Inspectorate indicated that “other matters relating to housing supply, layout, access etc. can all be dealt with in a Statement of Common Ground to accompany the appeal documents at a Hearing. It would seem to me a disproportionate use of the Councils [sic] time and resources, and indeed the inspectorates [sic], would be taken up by holding an Inquiry in this case”. 
  • APP/U3100/A/13/2210015/APP/U3100/A/13/2210018: Where the Inspectorate took the view that matters relating to traffic noise did need to be discussed but that they could be “satisfactorily explored through the inquisitorial approach followed by an Inspector leading a discussion at a hearing”. 

Inevitably, there will be a risk that an inspector could be persuaded by third parties that an inquiry would be more appropriate than a hearing. The solution to this concern is for the Planning Inspectorate to introduce pre-hearing meetings (in the same way that they would be fixed for an inquiry) where appropriate to the scheme. This would assist in setting the scope for the hearing and reducing the objectors’ ability to claim any lack of openness or transparency in the process. 

The planning appeal system has moved on in such a way that is suited to determination by way of hearing. This is because of the requirement to frontload appeals, which requires the early appointment of consultants and preparation of the case in full. It also shows that the Inspectorate has adopted a more interactive approach in dealing with contentious issues. 

Stuart Andrews is a partner and leads the national planning team at Eversheds LLP


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