Virtual planning appeals – a COVID-19 exclusive or the future of planning appeals?

Shoosmiths Emma Cartledge-Taylor examines the use of virtual planning appeals during the COVID-19 pandemic. The benefits, the drawbacks and whether virtual planning appeals will form part of the future of planning appeals.

When lockdown hit in March this year, the planning industry was forced to embrace technology on a bigger scale than ever seen before. Those steps have ranged from on-line decision making by “virtual” planning committees to electronic issue and hearing of judicial review proceedings in the Planning Court and most other matters in-between.

Perhaps most noticeable, however, was the way in which the Planning Inspectorate (“PINS”), adapted and utilised available platforms to enable so-called “virtual” planning appeals to be conducted.

With the realisation that the COVID-19 pandemic was not going to be over any time soon, the Planning Inspectorate was tasked with addressing the potentially significant backlog of planning appeals that would result if hearings and inquiries were forced to be held in abeyance until they could take place in person.

The benefits of virtual planning appeals

With the necessary COVID legislation and MHCLG in place to facilitate the change, planning appeal virtual hearings and inquiries have been taking place over the Summer with Inspectors carrying out unaccompanied site visits. Feedback from those using this system have highlighted a number of positive outcomes from this process including:

• a reduction in reliance on hard copy documents which has in turn led to more focussed arguments for and against appeal proposals
• better engagement with the public as a result of potential wider access to the proceedings on-line
• a reduction in costs both in terms of the reduction in physical paperwork and other matters such as travel, accommodation and attendances required
• not least is the fact that the appeals can continue to be heard safely during the current pandemic

On this basis the benefit of conducting virtual planning appeals and the continued general increase in the use of technology, is plain to see. But is this use of COVID beating technology something that will continue to be used going forward? Or will the recent announcement of a potential COVID vaccine merely mean that matters will revert to a pre-COVID position?

The need to test the evidence

For all its benefits, the reality, is that nothing quite compares to being able to cross examine or ask difficult questions of a witness in person. In some cases, it is essential of course, such as where facts are disputed or evidence is required on oath.

Good cross examination normally involves a series of specific statements being put to a witness in a way which extracts the answer being sought or relied upon. During that process, the advocate needs to build and be in complete command of the structure that is needed to secure those answers. That structure includes the tone and timing of how those questions are put. Even the advocates facial expression in response to an answer given by a witness or a longer than normal pause in questioning can be highly persuasive.

Unfortunately, such nuances are difficult and generally lost on an average virtual hearing as is the advocates ability to read the “body language” of the witness.

The Rosewell Review

Fortunately, these are concerns which appear to be recognised as PINS moves forward with so-called “hybrid” or “blended” appeals. These replace the traditional single method of disposing of appeals with a combination of measures which could include, for example, less adversarial roundtable hearing sessions combined with limited more traditional inquiry sessions which continue to allow cross examination.

This very much feeds into the findings of the Rosewell Review, where hybrid appeals were introduced and recognised as a way to try and reduce the overall time it takes for an appeal to be determined. The idea behind this is that parties try to narrow down the issues ahead of the hearing or inquiry, to try and resolve and/or deal with reasons for refusal, with an increased reliance on Statements of Common Ground.

Hybrid appeals also allow for evidence to be dealt with by round table meetings (similar to Local Plan Hearings), while also allowing the more contentious or technical issues to be dealt with in formal evidence with cross examination (usually relating to matters such as viability, heritage, some design points).

Conclusion

Local planning authorities, the Planning Inspectorate and the wider planning industry have embraced the use of technology to keep the planning application and appeal process moving forward successfully during the pandemic.  A major part of that progress has resulted from the increased use of virtual committees and virtual hearing of appeals.

It seems that hybrid or blended appeals will continue to develop and evolve as we step closer to 2021 and a potential vaccine. Indeed, it is difficult to see how we can (or would want to?), go back to the old more rigid appeals system.

With the ever-increasing pressure on local planning authorities and the Planning Inspectorate to make decisions within statutory timeframes and the obvious concerns over costs and resourcing; it seems that continuing to embrace the use of technology and the use of virtual platforms for planning appeals (where appropriate and in whole or part), is essential. Critically, we need to ensure that we continue to have a fully functioning appeal system now and post 2021 vaccine and beyond.