Agenda item

(Director of Corporate Support Services) To consider the attached report.

The Panel received a report regarding Planning Appeals and the Instructing of Counsel. The report informed members on how planning appeals were dealt with by way of the Public Inquiry (PI) process were handled by Legal Services.

Appeals against the refusal of planning permission, refusal of a Certificate of Lawful Development and issue of an Enforcement Notice were made to the Secretary of State via the Planning Inspectorate (PINS) which determined the most appropriate appeal procedure. Appeals were dealt with by way of:

• Written representations
• Informal hearings
• Public inquiries

The PI procedure was normally used when the evidence needed testing and/or questions required asking, and if:

• The issues were complex and likely to need evidence to be given by expert witnesses.
• There was a need to be represented by an advocate, such as a larger or other professional expert because material facts and/or matters of expert opinion were in dispute and formal cross examination of witnesses was required.
• Legal submissions might need to be made.

The effect of the new policy was that fewer appeals would be dealt with by way of PI. Legal Services was only instructed by Planning Services when a PI was involved and required legal representation. Written representation cases and informal hearings were dealt with by the appropriate Planning Officer, with assistance sought from Legal Services if required.

The Senior Lawyer would usually undertake the advocacy in cases where the PI was scheduled for one day. However, the Senior Lawyer would be fully involved in the arrangements for the PI.

Number of Public Inquiries

• 2007 - instructions in respect of 15 Public Inquiries, 11 were proceeded with by the Appellant. Of these 4 were dealt with by the Senior Lawyer and 2 related to Gypsy and Traveller sites.
• 2008 - instructions in respect of 7 Public Inquiries, 4 ended were proceeded with by the appellant. All of these were dealt with by Counsel. There were no Gypsy and Traveller cases.
• 2009 - instructions in respect of 6 Public Inquiries, 3 were proceeded with by the Appellant. 1 was dealt with by the Senior Lawyer the remaining 2 were Gypsy and Traveller cases and dealt with by Counsel.
• So far this year instructions had been received in respect of 3 Public Inquiries, one had been altered to written representations, the other 2 were being dealt with by the Senior Lawyer.

There had been a steady decline in the number of appeals progressing by way of PI and that trend was likely to continue especially in view of the new guidance.

Involvement of Members

For the past couple of years a new protocol had been introduced in respect of all appeals dealt with by PI. The protocol engaged interested members and parish/town councils in the process. Councillors and interested parties may have valuable evidence and information which would help the Council in opposing the appeal.

Appointment of Counsel

The decision on instructing Counsel was based on the complexity of the issues, whether the matter was “politically sensitive.” Members requested more clarification on the criteria by which a sensitive issue would be referred to Counsel.

The following points were made:

• Legal Services appointed Counsel from an approved list
• Counsel could be removed from the approved list if performance was unsatisfactory
• The District Council was involved in a fair amount of litigation in the County Court, Magistrates Court, Crown Court, High Court and Tribunals and PIs
• Some work was submitted to Counsel because of the court level involved. Only Counsel had the necessary rights of audience or the matter was particularly complex
• Legal Services was a member of a number of local authority forums, one of which was looking into the feasibility of creating in-house barristers’ chambers through partnerships working with neighbouring councils.

Gypsies and Travellers

In respect of PIs relating to Gypsy and Traveller cases where ever possible Mr Mark Beard would be instructed. Mr Beard had acted for the District Council for over 10 years and had good knowledge of the District and its planning policies.

Counsel was therefore only used when considered necessary, with any appointment being made on the merits of the case and the level of expertise required, and legal Services would seek to get best Value in terms of both the quality of the service and the cost.

RESOLVED:

(1)        That clarification is put before the Panel regarding “politically sensitive” issues being referred to Counsel; and

(2)        That the Planning Appeals and the Instructing of Counsel report be noted.