All posts tagged appeal costs

Prism and their client are celebrating after winning an appeal against an enforcement notice issued by Stockton Borough Council, which tried to reverse works our client had carried out to stabilise his garden next to the River Tees. Our client had laid out a series of terraces in his garden area that sloped down to the River Tees. A number of other residents had carried out similar works in their garden area over the years but for some strange reason, our client’s activities attracted the attention of the Council who served an enforcement notice on him, requiring removal and reversal of the stabilisation works. On our client’s behalf, we had argued that the works were in keeping with the character of the area and didn’t contravene the Council’s policies. We argued the need for consistency in decision making and that our client should not be treated differently to other local residents whose works had gone unchallenged. In allowing the appeal, the Inspector advised: “My conclusion on this issue is that the development does not materially harm either the character or the appearance of the surrounding area, and does not conflict with relevant Council policies or The Framework.” The decision highlights several points. Firstly, as homeowners, the planning system does not give an unfettered right to carry out large scale landscaping schemes. Anyone considering using a digger in their garden should consider carefully whether the works proposed will require the benefit of planning permission. The legal position can be quite confusing and it is usually better to seek expert advice from specialists such as Prism, rather than run the risk of action from the Council. As a result of this decision, Councils do however have to think very carefully before rushing ahead with enforcement actions that try to dictate how an individual can layout and use their private garden area. Clearly opposition from nearby residents, on its own, is not going to be a sound barometer against whether to take action or not. Prism are delighted to have won the case and would be pleased to advise anyone else considering a similar situation. A separate application for an award of costs is still being considered by the Planning Inspectorate and a decision on this is expected shortly.
A Planning Inspector has just overturned a decision by Durham County Council and granted planning permission for a new 500KW anaerobic digestion (AD) plant on a farm at East Hedleyhope, Bishop Auckland. The proposed plant and associated combined heat and power plant would provide electricity and heat out of digesting farmyard manure and other organic wastes. The case establishes Prism as one of the leading planning consultancies with expertise and in depth knowledge of the AD process. Prisms involvement was secured by Paul Palmer of CH4 Sense, a leading provider of AD services ch4sense.co.uk. The application was submitted to Durham County Council in June 2012 and although initially supported by officers, was refused by the planning committee in November 2012 with members disagreeing with officer’s assessment of the case. Members were concerned over the visual impact, odour, noise and the overall sustainability of the project. The decision of the Council was taken to appeal and an Informal Hearing took place in April 2013. In allowing the appeal, the Planning Inspector noted that the Council had not considered the National Anaerobic Digestion Strategy and considered that the Council’s policy base carried very little weight, being written well before the publication of the National Strategy in 2011. The Inspector considered that the tanks, although large in scale, would present itself as components of an existing farm and would have been properly screened by the landscape belt proposed in the application. In looking at the noise nuisance, he noted that the scheme did not breach World Health Organisation guidelines for night time noise and in looking at the odour decided this was something which would be properly regulated by the Environment Agency in due course. He considered that the Planning Authority were wrong in trying to adopt a precautionary stance in assuming that matters might go wrong. He went on to consider that this was a highly sustainable location for this type of development and was consistent with the National Anaerobic Digestion Strategy published by the government. He criticised the Council for seeking to locate such developments in existing industrial areas noting that certain types of AD facility would require large amounts of land to operate and they could not be expected to locate in general industrial areas to apply the presumption on favour of sustainable development established in the National Policy Framework for Planning and granted consent. Unusually, he went on to allow a full claim for costs against the Council noting that the members had departed from the professional advice of their officers without proper grounds. He was very critical of the Council applying a precautionary principle when advice clearly states that it is not their role in the planning system to do so. He concluded that the Council’s reasons for refusal were not justified or supported by any written or visual evidence and that the Council had put the appellant to the unnecessary cost of preparing evidence for and attending the appeal. Prism, and their client were delighted with the outcome of the appeal, noting that it was a complete vindication of the case they had argued and presented to the Council throughout the planning application process. In particular, Prism had supplied the Council with information covering all the points of concern and had sought to allay fears in these important areas. That this presentation of information was ignored by members is regrettable. However the AD process in the UK is still at a relatively young stage and it is perhaps understandable that fear of the unknown creeps into the decision making process. Hopefully this decision will show clearly that AD is here to stay and are properly considered proposals with well argued evidence should not be refused except on very specific and clear grounds. Prism look forward to working with the Council to get the scheme up and running in the very near future.

Appeal Costs

Welcome to Prism’s first attempt at a planning ‘blog’. I know that it’s probably not as exciting as learning what David Cameron has just had for breakfast but there are things happening out there in the planning world which affect the way in which we all do business. We thought we would start off by looking at the new changes to the appeal system, in particular the new abilities to claim costs across the board. If this might be of interest to you, read on…… If not, either go back to Mr Cameron’s breakfast for the day or tell me what else you would find interesting! When fighting a planning appeal, both sides are responsible for their own costs, regardless of who wins or loses. The only time this script is departed from is when one party behaves unreasonably. Even then, the aggrieved party can only apply for costs if the appeal is being heard at either a public inquiry or an informal hearing. These formats account for only a very small proportion of appeals –less than 10%. The alternative format of appeal, the written representation, is the cheapest and quickest but couldn’t be used to claim costs back except in specialist enforcement cases.That’s all changed now under new rules that came into effect on 6th April. From now on, any appeal started after that date, regardless of whether its written representations, informal hearing or public inquiry can be used to claim costs where a party has behaved unreasonably. Usually it’s the appellant aggrieved with the LPA which wants their costs but potential appellants need to understand it works both ways. Lodging any form of frivolous appeal can work against you but in my experience this rarely happens. The new guidance goes on to give examples of what the government will consider to amount to unreasonable behaviour and it throws up some interesting new areas for you all to be aware of. I thought I would draw your attention to a few of these in this note –some of them might cause your eyebrows to raise! 1) It is expected that applicants and LPA will have constructive pre-application discussions with each other. Where the LPA refuse or fail to provide reasonably requested information this can be valid grounds for an award. 2) Determining applications in an inconsistent manner! 3) Imposing conditions that fail the key tests set out in Circular 11/95 4) Refusing an application for a reason that could be overcome through the imposition of a condition instead. 5) Requiring the applicant to enter into a S106 agreement, the terms of which exceed current government guidance. 6) Relying on third parties to substantiate reasons for refusal 7) Withdrawal of grounds of refusal. 8) Not providing or agreeing a ‘Statement of Common Ground’ where relevant for an inquiry. One area I thought I would bring to you specific attention concerns those times when you have a problem and are negotiating on a solution and then the Council decide, for reasons of their own performance that they are going to refuse your proposals. I know we have all faced such frustrating scenarios. The new guidance does not deal with this head on but there is a reference to an oblique situation which may be of interest. Where you are negotiating with the Highways Agency and are close to reaching a solution, the guidance does tell you that if the LPA refuse the proposal without waiting for the solution to emerge, they may be considered unreasonable because their actions have resulted in an unnecessary appeal. The principles established by this will be interesting to say the least. We need a few ‘test cases’ to emerge and clarify just how far the Inspectorate have been told to go. What is clear is that LPA’s are far more exposed to costs than was previously the case and the scope for what is considered unreasonable has become much wider. Like everything in the planning world, there is an enormous paper chase surrounding how all of this is to be administered and great deal of bureaucracy. However it’s all familiar to us at Prism so give us a shout if any of this strikes a chord with you.