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Report of Head of Planning Author: Tracy Smith E-mail: tracy.smith@southandvale.gov.uk Wards affected: All |
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Cabinet member responsible: Cllr Anne -Marie Simpson E-mail: Anne-Marie.Simpson@southandvale.gov.uk Date: 11 October 2021 |
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Planning Appeals Performance Update
Recommendation(a) that Councillors consider the content of the report and feedback their observations to the Cabinet Member for Planning |
Purpose of Report
1. To inform Members of the latest performance information in relation to planning appeals for the period 1 January 2020 to 30 June 2021 to assist quality of decision making.
2. The report references the latest national published appeals performance criteria and outlines any trends and common themes in the Planning Inspectorate appeal decisions together with lessons learnt from decisions.
Corporate Objectives
3. The processing of planning appeals supports the Corporate Plan, 2020 - 2024, themes for ‘Homes and infrastructure that meet local needs” and “Improved economic and community well-being”.
Background
4. Planning applicants enjoy the right of appeal against the refusal of planning permission[1], the imposition of planning conditions and cases where the council has failed to issue a decision within the relevant statutory time period (referred to as non-determination appeals). Only the person(s) who made the application can appeal but interested parties can comment on the appeal. There is no right of appeal for third parties.
5. The Planning Inspectorate for England and Wales (PINS) is an executive agency of the Department of Levelling Up, Housing and Communities (DLUHC) (was Ministry of Housing, Communities and Local Government - MHCLG) with responsibility to make decisions and provide recommendations and advice on a range of land use planning-related issues. PINs deal with planning appeals, nationally significant infrastructure projects, examinations of Local Plans/Neighbourhood Plans and other planning-related and specialist casework.
6. For the purposes of this report, planning appeals are conducted under three lawful methods under S78 of the Town and Country Planning Act 1990 (as amended):
A) Local Inquiry (Public Inquiry) – a formal meeting with legal representation and cross-examination of witnesses,
B) Hearings – a more informal round table discussion with questions from the Inspector
C) Written Representations – exchange of written statements.
7. The onset of the Covid-19 pandemic saw PINS introduce virtual public inquiries and hearings in the late summer/autumn of 2020. PINS ran these events and all those involved were invited to attend through a specific MS Teams invite. Four virtual public inquiries[2] and two virtual hearings[3] which have taken place via this new process to date. Generally, the council’s barristers have remained in their chambers whilst officers involved have given evidence from their own homes or a room at 135 Milton Park. Any consultants appointed by the Council have either given evidence from their offices or homes.
8. The virtual process has been beneficial to the council in terms of the saving of venue and printing costs and also travel time which is particularly helpful when evidence is being given. Similarly, we have not been incurring barristers and consultants travel and subsistence costs.
9. However, with effect from 13 September 2021, PINS have confirmed that all inquiries and hearings will revert to in-person events. We have to provide suitable venues at our cost.
10. All appeals are determined by an appointed Inspector working for the Planning Inspectorate on behalf of the Secretary of State. There is no fee to make an appeal and parties are expected to meet their own costs. However, an Inspector can award cost for unreasonable behaviour by parties. Examples can include delays in the process and the inability to provide robust evidence. Currently appeals can take between 3 months to over a year to determine by the Inspectorate.
11. Where a planning officer recommends the refusal of planning permission under delegated powers that officer will usually deal with the appeal.
12. Our Principal Appeals Officer (PAO), Tracy Smith, usually deals with appeals relating to cases where the Planning Committee has refused permission contrary to the officers’ recommendation. In addition, the role includes preparing and presenting expert evidence at public inquiries and hearings.
13. The PAO will only give general planning evidence and when needed, housing land supply evidence. The latter is usually undertaken with the support of officers from the policy team, but on occasions other officers are key witnesses. The PAO will, where appropriate, appoint consultants to act as expert witnesses for the Council where technical refusal reasons are being defended such as the impact of noise, landscape harm and financial viability issues. In addition, the PAO will, where necessary, prepare S106/CIL statements and defend planning conditions at public inquiries and hearings. We also, with legal support, make cost claims for unreasonable behaviour where justified.
14. Since January 2019, a total of 110 appeal decisions have been issued. These have largely been dealt with by the case officer. The PAO has dealt with 25 appeals[4] mostly through the written representations process. However, two have been determined via hearings and six via public inquiries[5], the most recent taking place in August this year ( land at Lady Grove, Didcot P20/S1577/O).
15. Planning Enforcement officers generally manage their appeals cases.
Planning performance
16. In 2013 Government published “Improving Planning Performance – Criteria for Designation”[6] the document has regularly been updated since then with the most recent update in December 2020. This document sets out the Government’s criteria for assessing local planning authority performance in determining planning applications for major and non-major development (i.e. Minor and Other planning applications). The explanatory memorandum explains the changes to the criteria for assessing planning performance by councils.
17. The document has its background in the Government’s objectives of boosting the supply of housing and economic growth and the important role councils play in delivering these objectives. The performance of councils in determining planning applications for planning permission in a timely fashion is also crucial to these objectives.
18. Measuring the performance of Councils was introduced by the Growth and Infrastructure Act 2013 and is based on assessing councils’ performance on the speed and quality of their decisions in respect of applications for major and non-major development.
19. Where a council is designated by the Secretary of State as underperforming, applicants have the option of submitting their planning applications and associated fee for major and non-major development (and connected applications) directly to the Planning Inspectorate for determination. The council has to provide the administration of the planning application for the Inspectorate at its own cost and does not receive the usual planning application fee.
20. The Secretary of State can designate councils if they are not adequately performing their function in determining applications[7]. The performance of councils in determining major and non-major development is assessed separately, meaning that a council could be designated based on its performance in determining applications for major development, applications for non-major development, or both. The assessment for each of these two categories of development is against two separate measures of performance: the speed with which applications are dealt with (e.g. 8 weeks) measured against the proportion of applications that are dealt with within the statutory period or agreed extension of time; and the quality of decisions made by councils is measured against the proportion of decisions on applications that are subsequently overturned at appeal.
Speed of decisions
21. In terms of speed Table 1 below sets out the relevant threshold and assessment period in relation to the speed of decision making.
Table 1 Threshold and assessment period for the speed of major development and non-major development
22. Appendix 1 to this report provides an extract of tables 151a and 153 in relation to Oxfordshire councils. It confirms that the council is determining major development proposals at 84.2%[8] and non-majors at 78.8%[9] for the period July 2019 to June 2021. This period has been largely affected by the Covid pandemic which has affected our ways of working, however despite the increase householder applications (Others) during this period both performance figures are above the thresholds. Our performance is the same as our pre-Covid figures (see footnotes 8&9).
Quality of decisions
23. Table 2 below sets out the threshold and assessment period for quality of major development and non-major development for the period April 2018 to September 2020. The assessment period rolls forward every six months.
Table 2: Threshold and assessment period for quality of major development and non-major development
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Threshold and Assessment Period April 2018 to March 2020 |
Threshold and Assessment Period October 2018 to September 2020 |
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Quality of major development[10] |
10% |
10% |
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Quality of non-major development[11] |
10% |
10% |
South Oxfordshire District Council’s performance 1 April 2018 to end March 2020 [12]quality of decisions
Table 3 .1 April 2018 to March 2020 - Major decisions overturned
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Total number of major applications (determined and non-determined) |
146 |
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Total major appeal decisions |
10 |
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Total number of major decisions overturned at appeal[13] |
5 (4 Committee decision contrary to officer recommendation, 1 officer delegated decision) |
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% of overturned major decisions |
3.4% |
25. The data for the period confirms that the council had 3.4% of its major application decisions overturned at appeal which is an increase from the 3.3% in the previous period January 2018 to December 2019 (see Appendix 3). Recognising that the national average (England) has reduced from 1.8% to 1.6%, our direction of travel in quality of major decision making is not on track and the trend appears to be going the wrong way. This perhaps suggest the need for additional training for officers and councillors.
26. In respect of non-majors, 0.9% were overturned. No change has occurred since period January 2018 to December 2019. The national average (England) is 1.0%, so we are slightly better than the national position.
27. Obviously, this period is older than the period being reviewed in this report such that there is very limited overlap. Key major appeal decisions (x5) overturned from 1 April 2018 to end 2019 (since from January 2020 is covered in the remainder of this report) are set out in Appendix 4 together with the respective appeal decisions.
The Council’s Performance 1 January 2020 to 30 June 2021 – quality of decisions
28. For the purposes of this report our performance in respect of quality of decisions for both major and non-major development is reviewed for the period 1 January 2020 to 30 June 2021, in the context of the 10% thresholds identified above.
29. This section of the report identifies the number of applications determined (including non-determinations) as this forms the basis for then considering the percentage of overturned decisions. The number of overturned decisions are identified together with a breakdown of whether the appeal resulted from an officer delegated decision or a Committee decision.
Major applications
30. Applications falling within this category include developments above 10 dwellings/site over 0.5ha or 1000sqm/1ha.
1 January to 31 December 2020
Table 4: 2020 Major decisions overturned
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Total number of major applications (determined and non-determined[14]) |
63 |
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Total major appeal decisions |
8 |
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Total number of major decisions overturned at appeal |
4 (3 Committee decisions contrary to officer recommendation, 1 non-determination) |
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% of overturned major decisions |
6.3% |
31. Table 4 above shows that in 2020 the council determined a total of 63 major applications, 8 decisions were appealed and 4 were overturned by an Inspector. 3 decisions were made by the planning committee and 1 by an officer under delegated powers. The resulting figure for 2020 is that 6.3% of major decisions were overturned by Inspectors. Details of the appeals along with the appeal decisions are contained in Appendix 5.
1 January 2021 to 30 June 2021
Table 5: Major decisions overturned
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Total number of major applications (determined and non-determined) |
23 |
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Total major appeal decisions |
11 |
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Total number of major decisions overturned at appeal |
1 (delegated decision) |
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% of overturned major decisions |
4.3% |
32. Table 5 above shows that between 1 January 2021 to the 30 June 2021, 23 major applications were determined. 11 decisions were appealed, one of which was overturned by an Inspector. That overturn decision was at Little Sparrows, Sonning Common (P19/S4576/O refers) and a scheme for a retirement community care development which was allowed on 25 June 2021. In August, the council lodged a legal challenge to the Inspector’s decision. Whilst this first challenge failed the council has subsequently requested a review through an oral hearing.
Non-major applications (i.e. minor / other development)
33. Applications falling within this category comprise minor and other developments, including residential, offices, retail, Gypsy and Traveller, changes of use and householder applications.
Table 6: Non-majors overturned 1 January to 31 December 2020
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Total number of non-major applications (determined and non-determined[15]) |
1549 |
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Total non-major appeal decisions |
41 |
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Total number of non-major decisions overturned at appeal |
12 (8 delegated officer decisions and 4 Planning Committee decisions) |
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% of overturned major decisions |
0.8% |
34. As Table 6 above shows, over the period 1 January to 31 December 2020, 1549 non-major applications were determined. 41 appeals were determined of which 12 were overturned by Inspectors. This resulted in a quality performance figure of 0.8% which is significantly below the 10% threshold, although just below the England average (1%).
35. One of the officer planning decisions was also the subject of a costs application (land adj Queensway, Didcot) see Appendix 6. In this case a surface water drainage objection was raised due to the lack of available evidence submitted with the application following consultation with the council’s Flood Risk and Drainage Engineer. Our full reasoning in this respect was addressed in the statement submitted. However, the Inspector considered that the council had not submitted any substantive evidence to support its flooding objection and that a condition requiring such details to be submitted could be imposed. In failing to do this, the Inspector stated, that the council had prevented and delayed development which should clearly be permitted. An award of costs was justified, and the council has paid £3,600 to the appellant.
36. Cost applications and decisions are considered more fully below.
Table 7: Non-majors overturned 1 January to 30 June 2021
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Total number of non-major applications (determined and non-determined[16]) |
926 |
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Total non-major appeal decisions |
22 |
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Total number of non-major decisions overturned at appeal |
4 (2 delegated officer decisions and 2 Planning Committee decisions) |
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% of overturned non-major decisions |
0.4% |
37. Table 7 above shows that the council determined 926 non-major applications in the first six months of 2021. 22 appeal decisions have been received and 4 decisions were overturned at appeal by Inspectors which represents 0.4%, which is significantly below the 10% threshold and the national average (Apr-Mar 2020) of 1%. Appendix 7 contained details of the two committee overturn decisions.
Performance comparison
April 2018 to end March 2020
38. Using only up-to-date information from DLUHC, comparisons can only be made for the period April 2018 to end March 2020. This information is provided in Appendix 2 which shows the performance of the council in comparison with other Oxfordshire councils and England in respect of major applications and appeals. This shows that the district (6.8%) is proportionately subject to a high number of appeals (nearly double the national average 4.8%), which reflects the pressure for development across the area. Although the number of council decisions overturned by Inspectors is above the national average it is lower than the 10% threshold, however it appears to be not following the national trend and so it needs to be flagged as a risk.
39. Appendix 2 also shows the performance of the council in comparison with other Oxfordshire councils and England in respect of non-major (i.e. minor/other) applications and appeals between April 2018 and end of March 2020. Likewise, we proportionately have a higher number of appeals compared to the national average, but the number of decisions overturned by Inspectors is lower than the national average and Vale. This shows a reasonably healthy position in decision making.
1 January 2020 to 30 June 2021
40. In relation to this period, we have compared South Oxfordshire District Council with Vale of White Horse District Council in respect of major decisions overturned at appeal. This is shown in Table 8 below. This reflects the comments made above, where the trend appears not to be following the national trend and thus it is flagged as a risk.
Table 8 Vale of White Horse/South Oxfordshire District Council’s major decisions overturned 1 January 2020 to end June 2021
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Total major application decisions inc non-determined |
Major decisions overturned at appeal |
Quality of major decisions (% overturned at appeal) |
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South Oxfordshire DC |
86 |
5 |
5.8% |
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Vale of White Horse DC |
91 |
3 |
3.3% |
41. In relation to the same period January 2020 to June 2021, the performance of both councils in respect of non-major application (i.e. minor/other) decisions overturned at appeal as shown in Table 9 below. Again, this reflects the comments made above and is considered to be reasonably healthy.
Table 9 Vale of White Horse/South Oxfordshire District Council’s non-major decisions overturned 1 January 2020 to end June 2021
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Total non-major application decisions inc non-determined |
Non-major decisions overturned at appeal |
Quality of non-major decisions (% overturned at appeal) |
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Vale of White Horse DC |
1,562 |
3 |
0.7% |
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South Oxfordshire DC |
2,475 |
16 |
0.6% |
Costs Awards
42. Planning Practice Guidance[17] provides advice in respect of applications for the award of costs against the local planning authority or the appellant (and on rare occasions third parties). Parties in planning appeals are expected to meet their own expenses when appealing a decision, regardless of the process chosen. Costs can be awarded where one of the parties has behaved unreasonably and the unreasonable behaviour has resulted in unnecessary expense. Where an application is made for costs, the party applying is called the applicant since they might not necessarily be the appellant.
43. Table 10 below sets out the cost applications and decisions received in 2020 and 2021 (June 2021) and the status of amount, where available:
Table 10: 2020 Costs applications and decisions – majors and non-majors
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Application No. |
Type |
Location/Appeal Decision Date |
Costs Allowed/Refused |
Comments |
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2020 |
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P15/S3936/FUL & P18/S0973/FUL |
Major |
Land adj to London Road, Tetsworth Dismissed 13.01.20 |
Allowed |
Applications made by both the Parish Council and the Council were partially successful
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P17/S4037/FUL P18/S1724/FUL |
Minor |
Land at Holly House, Harpsden Bottom Dismissed 12.02.20
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Refused |
Application made by the Parish Council |
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P18/S0003/FUL |
Major |
Wallingford Portcullis Social Club, Goldsmiths Lane, Wallingford Allowed 20.04.20
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Refused |
Application made by the appellant |
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P19/S2513/FUL |
Minor |
25 Croft Way, Woodcote Allowed 16.07.20
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Refused |
Application made by the appellant |
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P20/S0412/FUL |
Minor |
Land adj 105 Queensway, Didcot Allowed 06.10.20 |
Allowed |
Application made by the appellant. £3600 paid to the appellant. |
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P19/S4630/HH |
Minor |
Oakridge Farm, Kidmore End Allowed 15.10.20
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Refused |
Application made by the appellant. |
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P19/S2814/FUL |
Minor |
2A Littleworth, Oxford Allowed 05.11.20
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Refused |
Application made by the appellant. |
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2021 |
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P17/S3579/FUL & P17/S3580/LB |
Minor |
4 Market Place, Wallingford Dismissed 08.01.21 |
Refused |
Application made by the Council and the Corn Exchange (Rule 6 party).
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P19/S2305/RM |
Minor |
Land off Cat Lane, Stadhampton Dismissed 04.03.21 |
Refused |
Application made by the appellant.
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P18/S0650/FUL |
Major |
Greendene Farm, Chazey Heath Dismissed 23.03.21 |
Allowed – partial award of costs |
The Council made the application and was awarded partial costs. £3782.88 has been paid to the Council
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P19/S1003/FUL |
Minor |
Balmaha, Henley-on-Thames |
Allowed – partial award of costs |
The appellant made the application. The Inspector allowed on the basis of the lack of justification on the council’s part in respect of viability. No details of costs submitted as yet. |
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The Cost of Defending Appeals
44. The costs the council incurs in defending appeals varies depending on the process involved (i.e. written representation, hearing, or public inquiry) and the main issues, whether these can be dealt with in-house by officers or whether external consultants need to be appointed.
Written representations
45. Where the officer has refused planning permission under delegated powers, their delegated report will largely form the basis for the submission to PINS which could be a formal statement or simply a letter which states that they will largely rely on their delegated report and cover off any issues the appellant raises which need rebutting. This process can take between half a day and a full day.
46. Having regard to current average officer charge rates, including administrative aspects of the appeal such as sending out consultation letters and assisting members of the public with any questions about the process and recharges, the cost for defending a written representations appeal would be approximately between £300 to £600.
47. For written representations appeals which follow a planning committee decision (i.e. an decision contrary to officer recommendation), the level of work needed is increased given the need to review the application merits as well as examining and rebutting the appellant’s statement. In this case it would cost approximately £500 to £850 depending on the issues involved. If a consultant is required to deal with a specific technical matter i.e. noise or drainage, then our costs would increase. A recent example of a noise report needed to defend a written representations appeal was £3,000
Hearings
48. The officer costs for a hearing are greater as more work is involved, such as seeking to agree common ground before the hearing as well as drafting and agreeing conditions. In some cases, a S106 agreement may be needed. Officer costs to prepare for a one day hearing could range between £3000 to £4000.
49. In the event consultants are needed to cover technical matters the costs can vary. For example, landscape consultants can cost £6,000. Viability consultants cost between £3,000 to £10,000. Planning consultants if needed range between £5,000 to £10,000.
50. Now that hearings have become in person again, the council needs to secure suitable venues for a hearing (or public inquiry). The availability of a suitable venue can be restricted as village halls which are usually reasonably priced often have classes booked months in advance. Venue costs vary, a village hall could cost in the region of £250 per day.
51. It is possible that appellants will seek legal representation at hearings. In such cases the council is likely to match with a barrister in attendance. We recently undertook two appeals and the costs ranged between £21,000 and £9,000 for a one day hearing. The council’s legal team always ensures that barristers fees are always competitive.
Public Inquiries
52. These are time intensive where officers need to prepare and submit a questionnaire, Statement of Case and a proof of evidence. The latter will often need other supporting proofs by consultants/officers. The officer will also be responsible for agreeing common ground with the appellant, working with the council’s team. In addition, the officer will project manage the appeal arranging meetings with the barrister and the team when necessary.
53. Consultants will often need to be employed. Costs will vary, but a recent consultant on a viability case costs approx. £21,000, which includes preparation attendance at the Inquiry.
54. Barristers’ fees for public inquiries can vary depending on the experience of a barrister and usually average between £40,000 to £48,000 for a 4-day public inquiry.
55. It is worth noting that the appellant’s will be incurring such costs too and in the event an Inspector finds the council has behaved unreasonably, the council will have to pay these in addition to the costs we have ourselves incurred in defending the appeal
Trends in decisions
Major application appeals
Housing Land Supply
56. The Council needs to demonstrate a five-year housing land supply and our unique position between May 2018 and March 2021 for Oxfordshire councils was to demonstrate a three-year housing land supply. This helped our ability to defend appeals.
57. However, that flexibility has come to an end and developers are scrutinising and challenging our deliverable supply of housing sites. Although we have a 5-year housing land supply, we need to recognise that developers will continue to challenge our stated position, which will mean more speculative applications. This has implications for workload and costs to the council.
Older persons housing
58. There continues to be a high level of enquiries about and applications for private care developments and care homes across our district. Although no sites were allocated in the South Oxfordshire Local Plan 2035, Policy H13 responds to the demand and supports sites that have good access to public transport and local facilities.
Non-major application appeals
59. The Council has been able to successfully defend proposals for residential development in the smaller and other villages where it does not comprise infill or is of a scale that is inappropriate to the location.
60. However, applications for new dwellings in the countryside need to carefully consider their relationship with nearby dwellings and settlements to determine whether they are truly isolated for the purposes of paragraph 80 of the NPPF. Recent High Court decisions[18] have considered the issue of isolated housing in the countryside.
Lang J confirmed at Braintree: “..a dwelling that is physically separate or remote from a settlement. Whether a proposed new dwelling is, or is not, 'isolated' in this sense will be a matter of fact and planning judgment for the decision-maker in the particular circumstances of the case in hand"; and "Whether, in a particular case, a group of dwellings constitutes a settlement, or a 'village', for the purposes of the policy will again be a matter of fact and planning judgment for the decision-maker"
61. Many of the decisions relate to matters of planning judgement which is for the decision maker to make. Thus, where Inspectors have found no harm to character and appearance of areas there is little the council can generally learn from these decisions. However, in many cases where they have been allowed, Inspectors have considered in some detail the existing varied character and allowed this to inform their judgement.
Measures to improve performance
62. We regularly monitor and review our appeal decisions and cost decisions, particularly where there is a danger of performance figures being breached and where an award of costs could have potentially been avoided. Our monitoring assists us in developing new planning training for councillors, in particular the planning committee, and also officers.
63. As mentioned above, we need to carefully consider our decision making on major developments as our success rate is not as good as the national average. There continues to be demand for extra care developments and care homes in the district, particularly in terms of market extra care housing, which is not the focus of Oxfordshire County Council’s provision.
Climate and ecological impacts implications
64. Although there are no direct climate or ecological impacts from this report, as part of the appeal process, if an Inspector is minded to allow an appeal, we need to provide draft conditions or a s106 agreement.
65. In these circumstances and subject to the nature of the appeal, we will seek appropriate planning conditions, such as electric vehicle charging points, Green Travel Plans, Construction Environmental Management Plans and biodiversity net gains. S106 agreements can also be used to secure biodiversity gains in addition to securing contributions towards public transport and highways improvements such as cycle lanes, where schemes are identified and considered necessary as a result of the development.
66. Other than as part of the development management staff time, planning appeals and any costs awarded are not budgeted for.
67. The approximate costs of appeals set out above and implications of being awarded costs against the council is important to recognise. Although our performance on appeals is generally good, it clearly has cost implications for the council in defending our decisions.
68. Any council decision that has financial implications must be made with the knowledge of the council’s overarching financial position. For South, the position reflected in the council’s medium-term financial plan (MTFP) as reported to Full Council in February 2021 showed that the council is due to receive £4.3 million less in revenue funding than it plans to spend in 2021/22 (with the balance coming from reserves including unallocated New Homes Bonus).
69. This funding gap is predicted to increase to over £5 million by 2025/26. As there remains no certainty on future local government funding, following the announcement of a one-year spending review by government, and as the long-term financial consequences of the Coronavirus pandemic remain unknown, this gap could increase further. Every financial decision made needs to be cognisance of the need to eliminate this funding gap in future years.
Legal Implications
70. There are legal procedures that we must follow in connection with appeals and deadlines must be met otherwise the council is at risk of incurring additional costs.
Risks
71. As mentioned above, the Government sets out its national performance targets, which we should at least meet or exceed. The potential consequences of poor decision making are both financial and reputational.
Conclusion
72. Overall, although the council’s appeals performance has been reasonably strong over the reported period, it comes at a cost. We need to carefully manage our decision making especially on major applications and recognise the themes emerging from Inspectors’ decisions and the further challenges that are likely to made to the council’s five-year housing land supply. This means it is important to undertake regular officer and councillor training.
Background Papers
The National Planning Policy Framework
National Planning Policy Guidance