Planning Inspectorate Newsletter - Issue 5
Consistency and Previous Appeal Decisions
We all want consistent decision making. It is important to developers, local planning authorities and third parties and few things are more likely to undermine public confidence in the fairness of an appellate process than the feeling that decisions are inconsistent.
We receive a small but steady trickle of complaints saying this or that Inspector’s decision is inconsistent with an earlier and similar appeal decision. But to complain that like cases should be decided in a like manner presupposes that the earlier case really is alike and not distinguishable in some material way. On investigation nearly all the complaints we receive about consistency can be readily distinguished, often because the types or sizes of development are entirely different, or because the passage of time (which in some instances has spanned years rather than months) has resulted in a change in the relevant policies.
It would be disingenuous, however, to claim that similar appeal proposals will, without exception, always be decided the same. Inspectors must exercise their own judgement and we cannot remove the human element from the decision making process. By their very nature appeals involve aesthetic judgements and the application of weight to different and conflicting evidence over a range of issues. Balancing this complex set of factors inevitably means that from time to time Inspectors will come to different decisions on genuinely comparable cases.
Nevertheless, we do whatever we can to reduce the scope for inconsistency in so far as that is possible without fettering the discretion of individual Inspectors. From their initial training onwards, we stress to Inspectors the potential importance of previous appeal decisions and the need for a proper explanation where a decision seems to depart from that of a previous Inspector on an apparently similar case. In particular, Inspectors must be clear whether they are (a) distinguishing the cases on their facts or (b) not following the previous decision, because, for instance, they hold a different view on a matter of aesthetics.
There is no doubt that when prayed in aid previous appeal decisions can be highly persuasive, albeit they are not binding. But, of course, Inspectors can only take into account that which they and the parties know about and hence any party to an appeal who thinks that a previous appeal decision supports their case must ensure that they bring it to the Inspector’s attention. Moreover, they must provide the necessary details, including copies of previous decisions.
The introduction of our electronic Planning Casework Service has given us the potential to more easily identify other appeals within a given distance from a current appeal site, which should help Inspectors to understand better the context of an appeal. However, the courts have said that it is the duty of Inspectors to decide cases, not to carry out extensive research on behalf of the parties. Ultimately, therefore, it remains for the parties to the appeal to make their own cases and put before the Inspector all the evidence on which they rely, including previous appeal decision(s).
Malcolm Brady
Head of Quality Assurance/Learning and Development Unit
