CHAPTER GP5 – WRITING DECISIONS

The Planning Inspectorate provides advice to Inspectors to assist them in carrying out their role consistently and effectively. The Inspectors’ Handbook provides advice on procedural and policy matters drawing on relevant Court judgements and the practical experience of Inspectors.
The Planning Inspectorate continually updates the Handbook to reflect policy changes, Court decisions and practical experience. In the unlikely event that conflict arises between national policy and guidance, and a part of the Handbook, that particular part will not be given any weight.
The Planning Inspectorate is also working with Communities and Local Government on a new streamlined format for the Handbook to reflect the Killian Pretty recommendation that planning needs to be more user-friendly.

What’s new since last edition (July 08)

Changes in Yellow made 23 July 2010

New section added - Applications for non-material amendments paragraphs 69 - 74 (23/07/2010)

Paragraph 42 updated to cross refer to GP8 Use of Conditions(18/6/2010)

Paragraphs 67 & 68 updated to make clear that in both transferred and SoS casework, where a legal issue has been raised the Inspector should whenever possible express a view on the matter (25/02/10)

Paragraph 32 of the Annex 'Clarifying the Plans' has been updated to expand the

guidance in PINS Note 1127a about imposing a condition specifying the plans

(20/01/2010).

New paragraph 9(a) has been added regarding defining the issues and when it is

appropriate to go back to the parties.

Advice regarding checking the status of any saved structure plan policies has been

updated in the Annex paragraph 11.

Advice on the weight to give emerging DPD policies in Annex paragraph 14 has been

revised.

Paragragh 8 has been ameded to take account of the findings of PINS Note 1098 and

encourages Inspectors when dealing with Green Belt cases to define the main issues

in line with the advice in IH PT3: Green Belts.

Paragraphs 57–62 have been added to the Annex – Fear as a material consideration.

Paragraph 15 of the Annex has been revised, to omit the reference to guidance on

SPG contained in old PPS12 and to give guidance on SPD.

Paragraph33 of the Annex has been revised regarding accepting late evidence to

accord with advice in HoP News Issue 26.

Paragraph42 of the Annex has revised guidance on how to deal with Design and Access Statements.

Paragraph 14 of the Annex has revised guidance on the weight to give emerging

DPDs.

Relevant Guidance

Section 38(6) of the 2004 Act
Town and Country Planning Act 1990 (s 79. s70)
The Transport Act 2000
PPS11, PPS12
Circular 11/95, Circular 1/97, Circular 1/85, Circular 8/93 (Welsh Office 23/93), Circular 05/2000, Circular 02/99
Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293); SI 2000 No. 1628
The Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000; SI 2000 No. 1624:The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (para 18(3); SI 2000 No. 1626
The Town and Country Planning (Hearings Procedure) (England) Rules 2000 (Rule 14(3)
Case Law

Newport BC v SS for Wales and Browning Ferris Services Ltd [19981 JPL377]; Kent CC v SSE & Burmah-Total Refineries Trust Ltd (QBD 29 July 1976; Elmbridge BC v SSE and Commercial Properties Ltd - HC/90 ; Kingswood District Council v SSE and Tanner; 1987; Smith V FSS (2005) EWCA 859 [2006] JPL 386

Contents

1-5 Introduction

6 Banner Heading

7 Decision

8-9 Main Issues

10-16 Reasoning

17-18 Other Matters

19-24 Conditions

GENERAL POINTS

25-26 Clarification Paragraph

27 Measurements

28 Planning History

29-30 Development Plan Policies

31 Helpful Comments

32 Precedent

33 Fallback Positions

34 Quality

ANNEX

1-2 Inquiry Cases

3 Banner Heading

4-5 Details of the Case

6-10 Clarification Paragraph(s)(where appropriate)

11-14 Development Plan Policies

15 - 22 Supplementary Planning Documents and Guidance

23 Local Transport Plans

24-26Split Decisions

27 Planning Obligations

28 Applications for Costs (Hearings & Inquiries Only)

29 Appearances (Hearings & Inquiries Only)

30-31 Lists of Documents, Plans and Photographs (Hearings & Inquiries Only)

32 Listing Plans in the Decision

33-36 Late Representations and New Evidence

37 Re-opening Inquiries

38-41 Redetermination

Other Matters or Types of Casework Which May Arise

42-46 Outline Applications

47 Reserved Matters

48-52 The Issue of Whether Planning Permission is Required

53 Temporary Permission

54 Defamatory Remarks

55-56 Environmental Impact Assessment
57-62 Fear as a material consideration

63 Retention of Inspectors'Notes

64 General

65-66 Policy Advice

67-68 Legal Advice

69-74 Applications for non-material amendments

CHECKLIST - Dos and don’ts

1.The aim of this Chapter is to encourage you to produce written decisions which are clear and concise. Decisions should be as brief as possible, but should provide sufficient justification for the conclusions reached and the decision made. It is always important for decisions to include proper reasoning, and for all decisions to be written so as to contribute to the PINS quality target.

2.The key characteristics of a good decision are:

  • no factual or typing errors
  • well reasoned – makes it clear why the decision has been reached
  • succinct – deals briefly with any procedural matters and with those matters necessary to the decision in the reasoning. Succinct decisions can be achieved by leaving out unnecessary detail without compromise to the quality of the reasoning.

3.All transferred Section 78 decisions, regardless of whether the appeal goes by written representation, hearing or inquiry should be as brief as possible. It is recognised that more complex cases may on occasion require additional sub-headings to aid clarity. However this does not apply to most Section 78 casework, including householder and similar casework. Where a fuller treatment of the issues is necessary, the aim should still be to produce a concise decision. To reflect this the template has been revised to remove the distinction between standard and short-form decisions.

4.Decisions should be economical in the way they address procedural matters, issue definition, policy and reasoning. They should aim for brevity, though this should not be at the expense of providing a satisfactory and tactful explanation of how the decision was reached. Inevitably the losing party will be disappointed at the result and the decision should be written with the losing party in mind.

5.Accuracy, clarity and simplicity of language are attributes of a good decision. These qualities are appreciated by all those who will read the document. Simple expressions and short sentences, avoiding the use of jargon or Latin phrases, are the most effective means of communication. The aim should be to produce a logical, convincing and well-structured decision which is easy to understand and avoids any scope for misinterpretation.

BANNER HEADING

6.Always check that the details in the banner heading are accurate. The date of the application and description of development should be taken from the application form. The date of decision (if one has been made by the lpa) should be the date on which the decision was taken, as shown in the decision notice.

DECISION

7.This should always come first, followed by any conditions if the appeal is being allowed. Where there are a significant number of conditions, for example more than one side of A4, the appearance of the document may be improved by placing the conditions in a schedule after the reasoning. In this case the decision to grant planning permission would be “subject to the conditions in the attached schedule”.

MAIN ISSUES

8.The template includes a heading for main issues. Experience has shown that the clarity of the decision can be improved if the main issue or issues are set out at the outset, and PN 1029 directs Inspectors to identify issues under a separate heading. However, where the issues are straightforward and readily apparent from the reasoning, many Inspectors have produced good quality decisions which do not include them in a separate heading. Therefore, particularly where there is only one issue, Inspectors should use their judgement as to whether to identify issues under a separate heading. There is no requirement to do so provided the quality of the decision is not affected. Nevertheless, in the light of the findings of PN 1098 the definition of main issues in Green Belt cases in line with the wording set out in PT3 is strongly recommended as good practice.

9.The issue or issues are the nub of the case, on which the decision will turn. Well-defined issues are the key to clear focussed reasoning. They should be introduced in a simple, straightforward way, focussing on the practical consequences of the development, rather than any technical or semantic point. For example, where there is an argument between the parties about whether the scheme amounts to 'over-development' or `backland development' it is better to define the issue in terms of the effect of the development on the character and appearance of the locality, etc. Issues should not normally be framed solely on the basis of whether the proposed development is in accordance with the development plan. If the reason for refusal refers solely to conflict with policy, the issue can be framed based on the objectives behind the policy.
9(a) When deciding which matters are at issue, it is essential that Inspectors correctly identify when it is appropriate to go back to the parties - simply because a matter has been raised does not automatically mean that an Inspector may consider it without seeking their views[1]. The fundamental principle to apply is whether all parties have had a “fair crack of the whip”. Consequently, where the parties could not have reasonably expected the Inspector to place significant weight on an issue, particularly where the issue has been raised in passing by a third party, the Inspector should give the parties an opportunity to comment further before determining the appeal.

[1] Poole v Secretary of State for Communities & Local Government and Cannock Chase District Council [2008] EWHC 676 (Admin)
REASONING

10.“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved.” House of Lords decision in South Bucks DC v Porter (No 2) [2004] UKHL 33.

11.Whilst accuracy and timeliness are fundamental to the quality and credibility of a decision, the critical content lies in the reasoning. Reasoning must be clear and cogent. Deal with each issue separately on which the decision will turn. Use references to relevant Government or Development Plan policy, and the physical characteristics of the site or the proposal to support your reasoning. These references can be brief and woven into your reasoning rather than being set out as separate statements of fact. Unsupported assertion is not enough. Use your judgment, but give clear reasons why you have exercised it in the way you have.

12.For each identified issue review the relevant facts and arguments, consider whether or not the scheme is in accordance with the development plan, and assess whether other material considerations should lead to a different conclusion from that indicated by the development plan.

13.Draw a clear conclusion in respect of each issue. It is best to conclude in the same terms as your issue reflecting the development plan policies. Where the harm caused by the scheme in respect of one issue is sufficient on its own to justify dismissing the appeal, this should be made clear i.e. “the harm identified is a sufficient reason to dismiss the appeal”. Deal with this issue first and the subsequent issues can then be dealt with more briefly. In such cases, where the scheme causes no harm in respect of subsequent issues, and where there are positive effects, you should acknowledge these but state that they do not overcome the fundamental harm that you have identified. Take care to balance any benefits against the harm identified to avoid challenges on the grounds of failure to take all matters into account. Where you find harm in respect of subsequent issues, you can say that this adds to the harm that you have identified. If conditions have been suggested you should say why imposing them would not overcome that harm.

14.Avoid rehearsing matters which are not at issue. Bear in mind that the decision is addressed to the parties to the case, who are well aware of the issues involved and arguments advanced. Therefore it is aimed at the informed reader. There is no need to recite back to the parties facts and arguments which are in the public domain, for example in the form of published policy or as submissions made on the appeal. The parties are also aware of the physical characteristics of the site and its surroundings and of the details of the proposals so you do not need to include any detailed description in your reasoning. What is important is your assessment of the issues and reasoned conclusions.

15.The inclusion of lengthy site descriptions and peripheral material is unhelpful and time consuming. It also increases the scope for errors. Any relevant description can readily be incorporated into the reasoning on the issues, and the arguments for and against likewise. It is essential that basic facts and directions are correct. Unnecessary or inaccurate description can be a source of justified complaint and should be avoided. If you are not absolutely sure of a fact ask whether it actually needs to be included?

16.If your conclusions on the issues pull indifferent directions include a balancing paragraph which clearly indicates the weight you have given to each issue and any other matters which you have taken into account. This is an essential part of the decision in such cases. The reasoning should be clear and logical; should not vacillate and should support the decision. It should not appear to head in one direction only to conclude the opposite, nor appear to draw conclusions on one matter and then re-open discussion on the same matter later.

OTHER MATTERS

17.A balance should be struck when deciding what should properly be included in decisions and what it is safe to omit. In the event of complaints or challenges where brevity is an issue Inspectors will be supported provided that the basic principles of reasoning have been adhered to. The courts have held that "…….The reasons need refer only to the main issues in the dispute, not to every material consideration.” (House of Lords decision in South Bucks DC v Porter (No 2) [2004] UKHL 33.)

18.Matters which have not been identified as main issues should be dealt with more briefly. It is not necessary to deal with the peripheral concerns of the winning party. You should deal with other matters raised by losing parties briefly but sensitively. Avoid making pronouncements about whether a matter is a material consideration; this is a matter for the courts. Instead give a clear indication of why the matter has not influenced your decision.

CONDITIONS

19.Any conditions imposed must be correctly worded having regard to the advice in Circular 11/95. If the appeal is being allowed conditions suggested by the parties (including consultees such as the Highway Authority or the Environment Agency) should be considered and brief reasons given for imposing or not imposing them. Never accept without question the conditions suggested by the LPA. Even if you agree they are needed you must check them against the tests in the Circular.

20.If the wording of a condition needs to be altered significantly you should explain why. It might be to ensure greater precision. In most simple cases there will only be one or two conditions to impose. There is no need to give reasons for the standard time limit conditions. If there are many conditions a separate section dealing with conditions may be needed, though the reasoning may well be short. See also IH Chapter6 for advice on appeals against conditions and GP8 for advice on planning conditions.

21.A high proportion of justified complaints relate to conditions, in particular that conditions were omitted that the Inspector proposed to include, that no reasons were given or that conditions to overcome perceived harm were ignored by the Inspector. The conditions are a critical part of the decision and great care must be taken when drafting them.

PLANS

22.The plans to be considered as part of the appeal should be confirmed at ASVs and be agreed at the start of a hearing or inquiry. Where additional or substitute plans (to those considered by the lpa) have been accepted these should be noted and identified by number, generally in a clarification paragraph. In large and/or Secretary of State cases the parties should be required to provide an agreed list of plans at or before the hearing or inquiry.

23.Where an outline application has been submitted, but is accompanied by detailed plans which do not have the notation that they are “illustrative”, you should determine those matters which are stated on the form to be for approval at outline stage, unless it is otherwise indicated in correspondence and has been dealt with accordingly by the LPA in their decision.

GENERAL POINTS