Planning by Appeal: How UK Developers Can Challenge Adverse LPA Rulings

If local planning authorities rule against a proposed housing development, it is not the last word. An effective appeal – and some plan changes – can change the ruling.

 

Residential development is perhaps the single most important tool for overcoming the shortage of housing in the UK. But as development teams – investors, architects, planners and homebuilders – understand well, not all proposals for building homes at scale are approved by local planning authorities. Capital growth land opportunities can wither on the vine if NIMBYism raises its head or if a poorly conceived or articulated plan is rejected by the local council.

 

The local planning authority (LPA) may reject the proposal outright or attach conditions to a proposal that the developer finds untenable or prohibitively costly.

But a first-pass rejection does not mean the plan will never move forward. The National Planning Policy Framework (NPPF) provides an appeals process that can save a project, typically with changes that meet pre-established criteria and which will benefit both local and national objectives.

 

How can developers effectively navigate this appeals process? The Government’s planning portal website (planningguidance.planningportal.gov.uk) offers straightforward advice:

 

1. Engage with the planning authority to discuss what changes to the proposal would be more likely to gain permission. It may be possible to make smaller changes without incurring additional charges.

 

2. If the local authority missed its own deadline for making a decision, within the statutory time period, the applicant is entitled to appeal it on that basis alone. It may be advisable, under most circumstances, to engage with the authorities on timing such that the relationship bears a sense of cooperation.

 

3. If an appeal is necessary, there will be deadlines placed on the applicants for submitting the appeal. For non-major applications that deadline is 8 weeks; larger applications are allowed 13 weeks to file an appeal; and for applications that require an environmental impact assessment there is a 16-week deadline.

 

Of course, it helps to know who to work with after a first proposal was rejected. Appeals are decided by Planning inspectors on behalf of the Secretary of State, who has the power to override those inspectors if he or she so chooses. This is known as a recovered appeal, which can happen under a variety of special circumstances:

 

• Larger projects involving sites of 5 hectares – key to land fund managers – or those, which will lead to more than 150 units of residence.
• Projects of regional or national consequence, which may be accompanied by controversy.
• Proposed projects which involve novel or legal issues or difficulties.
• Developments that pit one Government department’s interests or objections against another’s.
• Projects that can impact Government policies regarding climate change or energy.
• Proposals of significance (9000 square metres of floor space) that touch on a main town centre.
• Proposals that would significantly involve a Green Belt, including those that affect traveller sites.
• Proposals that could adversely affect “outstanding universal value, integrity, authenticity and significance of a World Heritage Site.”

 

Where do appeals succeed most? Data from the Department for Communities and Local Government indicate those authorities with the fewest appellate overturns are those with up-to-date plans, as required by the NPPF (roughly half of all councils have a five year plan, as otherwise mandated). But the difference is small. Where plans were in effect, between 2.1% and 6.1% of initial decisions were overruled; where there were no plans in place, 7.2% of decisions were changed on appeal. A report from the Communities and Local Government select committee urges councils to proactively establish their plan for a five-year housing land supply, as that is a national imperative. Real asset fund managers necessarily have to approach development on unused land where it can serve community growth interests as well as business profitability.

 

Few can argue against the collective benefits of development, even when the challenging issues inherent in changes to communities are forced into discussion. Unlocking unused land to serve the needs of a growing population can help alleviate the problems of overcrowding and delayed household formation.

 

But investments in land and development should be entered into by individuals from a personal perspective as well: will the investment balance with other assets in an individual’s or family’s wealth development strategies? An independent financial advisor will be able to guide the investor with objectivity.