Guest Blog: The place of Planning Appeals in democratic decision-making
With an appeal against the refusal of shale gas plans in Lancashire looking likely, we asked Matthew Sheppard from Turley Associates how democratic the appeal process is.
In the last month we have seen Lancashire County Council (LCC) refuse two shale gas exploration applications, and a decision by Government to approve an underground gas storage development in the same general area.
What is behind the apparent difference of approach between local and national decision making? With an appeal against the LCC decision seeming likely, is the ability of Government to override local decisions anti-democratic?
To understand why the UK planning system has a right of appeal, we need to look at why we have a planning system, and how planning decisions are made.
The History Lesson
The industrial revolution left the UK with a legacy of conflicting land uses, environmental and public health issues, cramped living conditions, and congestion. The widespread unplanned growth of the nation clearly caused issues that affected productivity, and caused both public health issues and environmental harm.
The Planning System
The decision to create a planning system was made to address these concerns in the wider public interest, to meet the needs of people and businesses, and to balance their needs against the environment that supports everyone.
The planning system plays a critical role in a representative democracy in balancing national needs with local interests. The ultimate purpose of the system is to make decisions for the public good.
In the case of shale gas, it needs to balance a national need for energy and feedstocks for the chemical industry; alongside the societal demand for the energy and products which they provide; against local amenity and health concerns and wider environmental interests. Not an easy balance to find.
So, why can’t a local decision be left alone?
Isn’t the right of appeal simply overturning a democratic decision?
The system is structured so that all local planning decisions are made in accordance with the Development Plan, which must accord with national policy. All decisions, whether at application or appeal, must fit with the plan, unless there are other factors which suggest that the plan shouldn’t be followed.
Those other factors are potentially very wide ranging, but could include evidence of environmental harm, the need for the development and its benefits, or even a perception that harm may arise from a particular development. These factors are open to interpretation, as is the application of policy. This creates a level of uncertainty around whether the right balance has been reached.
And why have a right of appeal?
Because of this uncertainty, the system allows a series of “checks and balances”.
Applicants who don’t agree with a decision can appeal to test that local decision. An independent, but Government appointed Inspector reconsiders the planning merits of the case. The appeal may be rejected or allowed, depending on whether the Inspector agrees with the applicants’ planning case, or not. Inspectors follow the same “rule book” as all other professional planners.
Objectors have the right to be involved in that appeal and have a full democratic right to be heard through that process.
Objectors aggrieved by a decision to approve a development do not have the right to appeal. This is because the potential for vexatious appeals is high, which could simply hamper delivery of development that the country needs.
However, objectors can Judicially Review a decision that appears to be legally flawed or unreasonable. That is another centralised process, heard through the Courts, where both parties have the right to be represented and to present their case.
It is right, and democratic, that local planning decisions should be open to public involvement and scrutiny by various means.
Where there are radically opposed views on a case, there needs to be an independent moderator for that decision. Ultimately, someone has to decide what is actually in the public interest.
The processes of appeal and judicial review of planning cases are all an integral part of the democratic process. There is nothing more democratic than the fundamental right to challenge a decision that you do not agree with.
Matthew is a director at Turley Associates Limited and head of EIA.