Planning appeals – a second chance to make an excellent first impression

03 Apr Planning appeals – a second chance to make an excellent first impression

Nine out of ten rejected planning applications go to appeal. One in three are successful. A key aim is to stress higher values that the planning authorities may have missed the first time around. And that is where carefully prepared information and a well-argued case are essential.

It is also an Enzygo speciality (www.enzygo.com). With extensive public sector experience, we understand the detailed priorities of local planning authority (LPA) decision-makers – councillors, officials, plus communities – and have the additional support of teams of multi-disciplinary experts.

I thought it would be helpful to quickly sketch out how the UK planning system works, the ‘planning balance’ principle, written representations, planning hearings, and full-scale planning inquires, plus the role of our professional appeal specialists and expert witnesses.

Case studies and principles

Then to illustrate the benefits of successful appeals, I refer below to a number of case histories which show what giving good planning applications a second and more powerful bite of the cherry can mean in practice.

First off, as an important starting point, because we are partners in the wider public planning process, we have a responsibility to support the core principle of reaching a fair and reasonable ‘planning balance’ in the best interests of all parties, including our clients but also local communities.

And that is where the quality and depth of our environmental and planning issue research, understanding of technical processes, skills in talking to the public, plus ability to provide accurate completely reliable relevant information comes into play (https://enzygo.com/planning/).

Emphasising the pros while responding to the cons

Any new development will almost inevitably divide opinions. Most people support progress … but not always on their own doorstep! Understandably, they are apprehensive about investments that could cause even small changes to their neighbourhood, environs, and local landscape.

That is an instinctive reaction. However, what they often miss is a proposal’s potential to generate employment, innovative services and businesses, new public and community social amenities, and an important financial boost to the local economy.

This is where appeals are an opportunity over and above initial planning applications to make a strong positive case in favour of a development over a much wider picture.

Political decision-making

I think everyone is well aware that there is also a growing trend for local elected representatives – councillors – to err in favour of what they think the voting public in their wards want.

As explained in a moment, such ‘vying for votes’ calculations often differ from the considered opinions of LPA planning officers whose professional duty is to make recommendations that support the broader socio-economic/commercial/environmental wellbeing of their local area.

The first major bonus of going to appeal is often the removal of any purely ‘political’ element and its subtle shift towards achieving a proper planning balance that considers well-referenced facts, plus the reputation and standing of planning specialists and expert witnesses.

This is also where it is our job to anticipate issues and questions astute planning officials will home in on before they even ask and show proof that all planning proposals have been designed carefully to cover every factor that could possibly affect a local case.

Yes or no answers and expert opinions

I need to stress here that success depends on the nature and type of the development in question and that everyone’s view is subjective. However, some aspects of a proposal – such as air quality, traffic, and potential flooding factors – are usually technical questions.

They may be complicated, but often require clear-cut ‘yes-or-no’ answers. As such, providing them often requires an experienced professional analysis and in-depth knowledge.

This is where Enzygo’s role as expert witnesses comes in; it is an expert witness’s responsibility to guide planning authorities towards an accurate and unbiased conclusion. As explained in a moment, this is most likely to be either at a hearing or at a full inquiry, both with qualified planning inspectors.

Technical details versus a professional interpretation

Landscaping issues are different and are almost always a matter of interpretation. There are, of course, frameworks and guidelines, which is where GLIVA3 is important, although expert witnesses have a role here too (https://www.landscapeinstitute.org/blog/glvia-the-third/).

GLVIA3 sets out a way of assessing effects on the landscape and visual resource a development proposal might bring. This can be a formal standalone Landscape and Visual Impact Assessment (LVIA) – or as part of an Environmental Impact Assessment (EIA). Less formally, they can be a Landscape and Visual Appraisal (LVA).

Appeal forums

With the basics concepts in place, appeal cases can be submitted, and arguments considered, in three planning-led forums.

– Level one: – The first is a written representation of why the applicants believe there is a further beneficial case to be considered. This is reviewed by a planning inspector. Written submissions are a good opportunity to underline positive aspects of a project that we consider with clients have been missed, misinterpreted, or could be more strongly presented.

Where new problems or objections have emerged subsequently, this is also an opportunity to submit additional information to clarify or redefine the value of key points.

– Level two: – The second forum is a planning hearing. Here, all parties involved in submitting and opposing an appeal can discuss contentious points freely with an officially-appointed and experienced planning inspector well-versed in planning precedents, laws and regulations.

Like written representations, hearings have a technical feeling which can work strongly to the appealing party’s advantage, but still be fair to everyone. The outcome of hearings is usually that parties agree or agree to disagree.

– Level three: – The third forum where major issues have become more contentious is the planning inquiry. The Planning Inspectorate decides on the form of forum, although the appellant and LPA can make requests.

The inspectorate also asks for copies of the application and accompanying documents and plans. It also appoints a presiding planning inspector who’s finding the secretary of state must consider in making a final decision.

Inquiries – a public scrutiny

Sometimes spread out over weeks or even months, inquiries are an opportunity to take a more adversarial approach. Robust assertions can be made and rebutted to test the validity of proposals. Concerned local authorities may appoint barristers to represent them. The wide range of media can also be present depending on the level or controversy.

In large infrastructure project planning applications cases, detailed records of meetings, press statements, correspondence, and other documents going back over months and even years can also be called for. Which is why it is important to always speak with caution!

It is also another reason why the integrity and management of information must be of a high order – and why Enzygo regards professional data control here as vital.

Flooding and landscapes

Appeals are often made in two key areas. With an increase in severe, erratic and hard-to-predict storms linked to climate change, the first is flood defence proposals which are now a very topical issue (https://enzygo.com/hydrology/).

They can take the form of ‘hard’ engineering – walls, bunds and barriers – to limit, or partially limit, the ingress of surface, underground and river flood water into and around properties and local catchment areas. Here, key factors can be the frequency of bad weather, the level of anticipated damage, plus the cost of both construction and damage.

But ‘hard’ engineering is not the only flooding defence strategy. Soft solutions such as SUDS (sustainable drainage systems) are now being proposed increasingly to artificially replicate conditions found in nature that slow down (attenuate), clean, and store excess rainwater until it can be returned safely to the environment.

Flooding is an example where both hydrological and landscape issues (https://enzygo.com/landscape/) can be planning matters, and a strong case is needed to explain why carefully profiled landscapes of publicly accessible land can be both an efficient flood control strategy and an attractive public amenity.

Case study examples

As promised, I have included here a number of successful historic and on-going highways, infrastructure and residential case studies where written representations, hearings and public inquiries have, or are currently of importance.

Mersey Gateway [2009]: The opening of ‘the second Mersey crossing’ in 2017 with a new six-lane toll bridge between Runcorn and Widnes brought local environmental benefits including a 28.5 ha nature reserve. However, the details were contentious. Enzygo provided landscape [planning] and visual evidence for a planning appeal by Halton Borough Council on behalf of the combined Merseyside authorities. After a successful 2009 Public Inquiry, Orders and Planning Permissions for the Mersey Gateway Project were confirmed by the secretaries of state for firstly Transport, and secondly Communities and Local Government.

A1 Leeming to Dishforth [2006] and Dishforth to Barton [2009 and 2014] Improvements: My role working with AECOM and Grontmij [now Sweco] on behalf of Highways England [Highways Agency was to co-ordinate the environmental input and provide expert witness testaments at two Public Inquiries on Landscape and Visual Impact and Community Issues for the northern and southern sections of the 39-mile A1 widening in North Yorkshire. The two projects were originally conceived as one, but then split by the Government into two phases. The first – Dishforth to Leeming – was completed in March 2012. However, the second – Leeming to Barton – was removed from the road programme but then re-entered with approval to proceed in December 2012. Construction ended in March 2018.

Hownsgill Energy from Waste Facility [2022]: Enzygo has represented Project Genesis Ltd in an appeal against Durham County Council’s development refusal for an Energy from Waste facility to process circa 60,000tpa of municipal waste currently going to landfill, produce some 3.48MW of power, and provide a district heat network. The refusal was based on three landscape-linked issues: – unacceptable harm on the North Pennines Area of Outstanding Natural Beauty; harm to the character and quality of the landscape by virtue of the developments scale and mass; and the development’s appearance. The project was called in by the Secretary of State because of unprecedented objections by the public, and the appeal is due to be determined by March 2023.

Carlton Meres Holiday Park Extension [2021]: We also represented Park Holidays UK Ltd successfully in a hearing against East Suffolk Council [Suffolk Coastal] for refusing to approve a 50-unit extension to the adjoining Carlton Meres Holiday Park because it would “be harmful to local landscape character; will detract from the enjoyment of public rights of way in the immediate vicinity and is, therefore, of a scale inappropriate for the nature of the location and its setting. Permission was granted after an inspector decided that tourism benefits outweighed any conflict with the development plan.

Brown Edge Road, Buxton [2019]: Our team provided landscape and visual evidence in support of High Peak Borough Council’s case against the development of 20 new homes within the green belt [and valued landscape]. The landscape [and principal] issue related specifically to the Council’s Reason’s for Refusal that “the proposed development would be visually intrusive in the landscape and fails to respect local landscape character”. We won when an inspector dismissed the appeal on the grounds that “due to the significant engineering works and quantum of development proposed the scheme would result in the urbanisation of the site” and “that it would be harmful to the intrinsic beauty of this part of the countryside and would not appropriately respond to local character.”

Grizedale Close, Bolton [2022]: The opinion of planning officers was that 35 new affordable apartments and eight homes on urban land would not ‘unduly harm the character and appearance of the area’ and were compliant with Policies. However, Bolton Metropolitan Councils said the ‘… proposed four storey apartment building, by reason of its siting, height, scale and appearance, would not be in keeping with the character and appearance of the area, and would appear incongruous from surrounding viewpoints and the public rights of way that adjoin the site, contrary to policies in Bolton’s Core Strategy’. Enzygo supported an appeal by P4 Planning on behalf of Watson Construction Ltd at a hearing due to be determined in early 2023.

To discuss any of the issues above, please contact me directly.

Paul Beswick, Director of Landscape and Manchester Office Lead