As we look back over five years of a coalition Government and ask ourselves what it has done for planning, CPRE, NALC and Civic Voice demonstrate why a community right of appeal should be on the new Government’s agenda – and soon.
Community right of appeal
Just over a year into the coalition Government much fanfare greeted the 2011 Localism Act. Announced as part of the “Government’s revolution to hand power back to local communities”, the thrust of Localism was that communities should be able to be active participants in planning decisions and be given powers to decide what happens in their area.
However, what happened at local level didn’t really match up to the promise of the Act. Instead, numerous planning reforms left local communities feeling disempowered, with decisions being taken out of their hands. In particular, the five year housing land supply policy in the NPPF, which provides a loophole for developers if a council cannot meet housing targets, has caused local authorities to allow planning applications, fearful of the cost of losing a subsequent appeal. Last year, CPRE’s report Targeting the Countryside looked at planning appeals where housing land supply was discussed and found that 27,000 houses were given permission at this type of appeal alone over two years.
Judicial review remains the only means of challenging a poor planning decision despite this trend although the need for legal support and the risk of incurring substantial costs puts this option out of reach for the vast majority of community groups. Nor can judicial reviews be concerned with the planning policy merits of a case; they can only consider whether a decision has been made unlawfully. Further frustration is caused by the fact that developers have the right of appeal against a local refusal of planning permission on grounds of planning merits.
Without the reassurance that decisions granted contrary to a neighbourhood plan can be challenged, there is little incentive for a community to go through the effort required to produce one. That is why we are calling on the new Government to show that it is serious about giving power to communities by backing up local and neighbourhood plans with a right of appeal.
The right we support would apply to decisions to grant planning permission where they go against a draft or finalised local or neighbourhood plan. It could only be invoked by parish or ward councillors, neighbourhood forums, or NGOs with standing. Only the most controversial cases would be affected but it would allow community concerns to be dealt with more efficiently, and in a more equitable manner than the judicial review process.
Some have argued that a limited community right of appeal is not necessary because it would apply to so few cases. It could be said that judicial review of planning decisions also only happens relatively rarely, but it is an essential safeguard against unfair or unreasonable decision making in planning. Moreover, judicial review can only address points of law, rather than issues of planning policy or vision. A community right of appeal would ensure that the planning merits of cases are independently examined in the most controversial cases, where such review is most needed.
Others argue that the right could be abused and over-used. However, until fairly recently local planning authorities were required to publicise applications that they considered to be departures from the plan. This procedure could therefore help to filter community appeals.
The limited community right of appeal that we support will reduce the expectation that the Secretary of State should become directly involved in planning applications of significant controversy, as well as the number of cases referred to him in the first place. As such it could provide a process more in keeping with localism.
So if the new Government really wants to hand power to local communities they need to commit to rebalancing the planning appeals system so that community groups can both plan for their future and challenge bad plans by others.
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