Law Society opposes fees for making planning appeals unless safeguards in place

The Law Society has opposed the idea of fees for making a planning appeal unless further safeguards are put in place.

In its response to the housing white paper Fixing Our Broken Housing Market, which was published in February, the Society’s planning and environmental law committee said the integrity and independence of the appeal procedure must be maintained.

It asked: “What can appellants expect in return for their fee - how would the service differ from existing and would it be improved? Is there a risk that introducing fees could compromise integrity and independence – with those willing/able to pay more being prioritised?

“How would 'legitimate' appeals be distinguished from others and what criteria would be used to assess whether a case is considered ‘less complex’?

“Would this also apply to call-in/recovered appeals by the Secretary of State so that these would be fast-tracked?”

Clarity was also required with regards to any refunds and how this would work in relation to the existing framework of parties paying their own costs regardless of success unless there were issues relating to unreasonable behaviour, Chancery Lane said.

The committee was also concerned that the concise and comprehensible nature of the National Planning Policy Framework (NPPF) might be undermined by excessive changes arising from the white paper.

In detailed comments, it said it would be inappropriate for local planning authorities to take into account an applicant's track record when determining planning applications, as this would not properly be a ‘material consideration’ and there was a risk of stifling innovation.

“If developers are concerned that failure to deliver will be held against them in the context of future planning applications, even for unrelated sites, they may be reluctant to tackle trickier developments, thereby reducing the likelihood that challenging sites will be brought forward for housing,” the committee said.

It saw no useful purpose in cutting the time in which a developer must implement a housing planning permission from three years to two, a proposal designed to speed up housing delivery.

“Reducing the period for implementation risks lowering the quality of submissions in discharge of pre-commencement conditions,” it said.

“Furthermore, many developers already find it challenging to secure the necessary funding and discharge the relevant conditions within the existing three-year period. It is therefore highly likely that many developers will seek to negotiate a longer implementation period on grounds of viability or deliverability in any event, creating a disparity between the implementation periods for developments.”

Mark Smulian