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Legal landscape: Rosewell reforms may not work as hoped

The Planning Inspectorate’s implementation of recommendations from the Rosewell review may have unintended consequences, says Stuart Andrews

Changes made in August 2019 to the administration of planning inquiries following the Rosewell review are only now beginning to be fully understood.

PINS has implemented recommendations from the Rosewell report in relation to statements of case (SoC) and statements of common and uncommon ground (SoCUG) for English appeals where an inquiry is requested. These changes include for:

  • a prior notification process for appeals where an inquiry is the preferred procedure;
  • the setting of dates for inquiry appeals;
  • standard case management conferences; and
  • arrangements to deal with some topics by hearings or written representations as set out in the updated guidance.

The SoC guidance includes the notification form advising the council of the intention to appeal by way of inquiry, to be submitted 10 working days before the appeal.

Where an appellant requests an inquiry, the guidance says an SoC should set out the appellant’s case, identifying the main issues and the evidence to be called. There are some nuances in the guidance as to what an SoC must include and, notably, these relate to:

  • focus on areas of difference;
  • provision of text with relevant imagery only;
  •  include the documents to be referenced; and
  • a summary of overall conclusions.

It is also noteworthy that the council must identify potential rule 6 parties.

SoC guidance states that if PINS determines that a hearing or written representations are more appropriate, “details of the procedure and relevant timescales will be clarified separately”.

There is no more advice about what happens in this situation and there have been cases where a hearing has been elected by PINS and the appellant has then been left with no established process to submit further evidence beyond the original SoC.

“This new procedure and programme presents clear resourcing and timetabling issues”

In brief

  • New SoC guidance may leave appellants without the means to submit a full complement of evidence 
  • A PINS trial suggests that the procedures deliver decisions within the desired time frame 
  • But they also present resourcing and timetabling issues, and increase the prospect of costs awards

In the absence of any procedural remedy, there is an emerging practice for ‘borderline cases’ where prior work is undertaken to allow for the preparation and submission of the full complement of evidence when the appeal is lodged. What constitutes a ‘borderline case’ is clearly a matter of careful judgement.

When submitting an appeal, the appellant must submit a draft SoCUG to identify areas of agreement and areas of no consensus. The agreed SoCUG is to be submitted within five weeks of the start date. This reflects earlier versions of the PINS procedural guide, but the expectation is that this is now prescribed to ensure that the document can effectively inform the case conference process.

As part of the case management process, the inspector may request detailed topic-specific SoCUGs. Depending on the topic, these may need to be agreed with another party or a rule 6 party. These topic-specific SoCUGs should be submitted at the same time as the relevant proofs. The standalone guidance advises that the agreed SoCUG can also be used to “inform a subsequent Position Statement on Main Issues”.

The case management conference will take place within seven weeks of the start date, as a call with the appellant, council, rule 6 party and invitees of the inspector. A pre-conference note will be sent out in advance to include the inspector’s assessment of what the main issues are likely to be. A note of the proceedings with the inspector’s decision on matters discussed in the conference call will subsequently be issued.

PINS confirms that “since the start of issuing decisions in the new ‘Rosewell style’ in March 2019, decisions from 15 inquiries have been issued using the new process and timeline all within the expected time frame of 24-26 weeks; over 90 per cent have been within 24 or less; under 10 per cent within 26 weeks.”

The imposition of this new procedure and programme presents clear resourcing and timetabling issues for appellants and councils, effectively removing the benefit of parallel resubmissions and increasing the prospect of cost awards. These changes will have a big impact on the profession.

Stuart Andrews is partner and national head of planning and infrastructure consenting with Eversheds Sutherland

Image credit | iStock


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