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The relevant section reads:
“If you intend to rely on a planning obligation you should send an executed and certified copy with your appeal form for appeals proceeding by written representations. For appeals proceeding by either a hearing or an inquiry you should send a draft version with your appeal form and our start letter we will send you will tell you when you must send the final draft to us.”
The most significant change relates to Written Representations appeals. An executed planning obligation must now be submitted at the point of appeal, rather than within seven weeks of submission (per the previous guidance). This means that the appellant will need a fully signed and dated deed before they can submit their Written Representations appeal.
The rationale for the change is to tackle delays in the determination times of written appeals, the vast majority of which taking longer than 20 weeks. In theory, this change should shorten time between submitting an appeal and receiving a decision. However, the guidance creates a potential problem.
Where a planning obligation is needed, it can take the form of either a Section 106 Agreement or a Unilateral Undertaking. A Section 106 Agreement is signed by both the appellant and the Local Planning Authority (LPA). They have the obvious benefit of being explicitly agreed to by the LPA, proving to the Inspector that all necessary planning obligations have been given. Whereas a Unilateral Undertaking is a deed given by the landowner to the LPA containing enforceable obligations but without the LPA actually being a party to the document. It may or may not have been negotiated with the LPA in advance.
With the strict deadlines for appeals – sometimes as short as 12 weeks from the LPA’s refusal of permission or even 28 days where there is also an enforcement notice – there is little (if any) time for meaningful dialogue with the LPA over what the planning obligation should include. This may result in planning obligations being produced by appellants which do not meet the LPA’s legitimate policy requirements, which may, in turn, lead to an increased proportion of refused appeals if the Inspector is not satisfied.
PINS’ idea is that planning obligations will be dealt with up front, with the majority of the negotiation and drafting taking place when the initial planning application is submitted. However, LPAs often do not engage with s.106 negotiations until the planning committee or officers have decided to recommend approval of an application. So, where the LPA is likely to refuse an application, there may be no meaningful engagement at all before a decision is made.
To avoid this risk, appellants may ask for their appeal to proceed via the hearing or inquiry procedure. These are meant for more complex and larger schemes, constituting only about 10% of appeals. The new guidance states that in these types of appeal a “draft version” of your proposed obligation is all that’s needed when submitting your appeal, giving more time to hammer out any contentious points with the LPA. The drawback is that they are more expensive, as you will need to pay for various members of your team to attend the day(s) of examination. And, ultimately, it is for PINS to decide which procedure is eventually adopted.
Conclusions
What is clear is that you and your solicitors will need to hit the ground running when it comes to submitting your appeal. It is advisable to start drafting a planning obligation before your initial application is decided, as this will allow you to take full advantage of the limited time available if an appeal is needed.
Here at DMH Stallard we have a dynamic team including both chartered planners and specialist planning solicitors, so you will not need to waste time managing communications between separate teams.
