Appeals, The Limitations of the Planning System, Supporting Pubs

Hopefully by now you understand that saving pubs demands a range of measures from ACVs to local plans and campaigning needs strong and informed leadership with a ready army of willing and attentive volunteers. In this final issue, we cover planning appeals, discuss the limitations of the planning system and end on a vitally important note that may seem obvious but is often overlooked. Fill your pint glass, sit back and enjoy.

Planning Appeals

The planning system ensures that development is managed according to agreed plans and policies and that the process of development proceeds in a transparent and efficient way as governed by statute. Generally speaking the presumption in favour of positive sustainable development means that landowners should be able to build infrastructure and put land to appropriate uses unless there are strong reasons for refusal. The default position is to go ahead with proposals. If an applicant is not happy with a planning decision, they can refine or revise their plans and submit a second, third, fourth or nth application. If they are unhappy with a local authority decision and believe they should be allowed to proceed with their initial plans, they have the right to appeal. Appeals are dealt with by a government agency called the Planning Inspectorate. Planning Inspectors are professionally trained and experienced experts. They are appointed by the Secretary of State for Communities & Local Government. They represent the Secretary of State and have his delegated authority to grant planning consent in lieu of the local authority, or to dismiss appeals as appropriate. They also have the power to award costs against any party. Their other duties include inspecting local plans to ensure compliance with national policy, chairing public inquiries into major schemes, advising Ministers on planning matters, and generally providing pseudo-independent oversight of the whole planning system.

Making a planning appeal is a double edged sword. Inspectors are independent but will be very well versed in all aspects of policy and will study local plans in great detail. They are drawn from diverse backgrounds including law, engineering, architecture, archaeology, local government, and the arts. They have no local political axe to grind and so often appellants think they will have an easier time getting a housing development through an Inspector than with a local Council’s planning sub-committee. But Inspectors are also highly trained and will scrutinise the fine detail more thoroughly than a committee which leans very heavily on an officer report. They will also be very mindful of their statutory duties, particularly under Section 72 of the Listed Buildings & Conservation Areas Act 1990, which places an obligation on decision makers to at least pay regard to the desirability of preserving or enhancing the character of heritage assets. Many pubs are, or lie within or next to, heritage assets. On the whole Inspectors have made some very good decisions on pubs and have saved scores from development over the last few years. There are of course cases where an Inspector will attribute little or no weight to the harm caused by the loss of a pub and we have seen some real howlers too. On balance London pubs have faired pretty well in the hands of Inspectors. The Golden Lion (Camden), Cross Keys (Chelsea), Swan & Edgar (Marylebone), Chesham Arms (Hackney) and Admiral Mann (Camden) have all been saved from development by Planning Inspectors.

Inspectors deal with three main types of appeal. These are appeals against the refusal of planning consent, appeals against non determination, and enforcement appeals. All appeals can be heard via three distinct methods. These are written representations, an informal hearing, or a public inquiry. The public inquiry method is costly, tedious and time consuming and is normally reserved for those appeals which are contentious and involved or attract a great deal of public interest. Many enforcement appeals tend to proceed along the inquiry route. If a local authority refuses consent for change of use or demolition of a pub, or for a hybrid scheme like conversion of ancillary accommodation to flats (Trojan Horse) then the applicant may appeal to the Planning Inspectorate, asking for a more favourable decision.

The appellant and the local authority can express a preference for which route the appeal will follow, but the Planning Inspectorate has the final say. They will not impose a hearing if the appeal can be adequately and fairly heard by written reps. Inspectors will have access to all the documents from the original application, including any comments received by members of the public and the officer report on which the Council refusal was predicated. Enforcement appeals are different in that the applicant is only allowed to appeal on specific grounds laid down in Section 174 of the Town & Country Planning Act 1990. Invariably pub enforcement cases involve a ground a) appeal, which means the appellant believes they should be allowed to do the thing over which the Council has issued an enforcement notice. This is referred to as the ‘deemed application’. It is a gamble but many developers get away with it. The Inspector will need to decide with a fresh pair of eyes whether whatever it is they are accused of doing has 1) actually been done and 2) is legitimately enforceable and 3) should it be allowed regardless? These appeals can be quite involved.

Joining in the fight in a pub planning appeal is actually rather good fun and very educational. Like most planning decisions, it is a quasi judicial process but the Inspector will normally have more time to fully explore the issues than Council committees and might be more thorough than Council officers. If your community was heavily involved in the initial decision which is being appealed, perhaps you co-ordinated objections and ran a campaign based on earlier parts of this toolkit, you can ask the Inspector to be added to the appeal as an interested party, or in the case of a Public Inquiry as what is known as a “Rule 6(6) Party”. There are helpful guides on precisely how to get involved, both formally and informally, on the Planning Inspectorate website at https://www.gov.uk/government/organisations/planning-inspectorate Do not be put off by the apparent complexity. The case officer will guide you in the preparation phase and Inspectors are very helpful and accommodating to members of the public and laypersons. Fundamentally, the planning system is geared up to resist the loss of valued pubs. If your campaign is getting to the dizzy heights of an appeal, whether against a planning decision or an enforcement notice, you need to get your campaign team out in force and fully participate. Save a call in from the Secretary of State, it does not get much more serious than this.

Planning System Limitations

When a pub is first threatened it is a natural reaction for people to want authorities to wave a wand and stop it. Writing to Councillors is an essential step but be mindful of what they can and cannot do. The planning system controls the uses to which land can be lawfully put. The planning process can refuse consent for change of use from pub (A4) to residential (C3 or C4) but cannot force an owner or operator to continue an active pub use. When a pub ceases trading, for whatever reason, the land use is still lawfully A4 but considered ‘dormant’. No other use can take place unless permitted development or consented via a planning application. Until a change of use is implemented, the land use remains lawfully A4, even if the pub is demolished! The planning system has no influence on whether the owner or tenant decides to trade. It cannot affect what type of pub will be there if any, what beer will be in the cellar, whether it will have live music and sports on TV or be a cocktail bar or a gastro pub. These all fall into A4 use category and the planning system in this regard is quite a blunt tool. See the editorial provided by Nick Perry and me at the front of this issue for further commentary in this area. The planning system can safeguard land use by refusing any alternative. We then have to rely on good old market forces and perhaps the existing character of a pub building in order to attract the right type of operator, who will open and run the right kind of pub. This does work in some cases, but we also hear complaint that a particular pub has been gentrified or socially cleansed or an old drinking house is now food led or a fuss free boozer has been tarted up by hipsters and the drinks are too expensive. This is all supply and demand. If operators offer something the market does not want, they will never succeed. The planners cannot influence any of this one iota. Even if policy requires that A4 use, as a community social facility, is to be retained, developers can easily get around this by knocking a pub down and replacing it with a modern block having a shell unit at ground floor level. This is frequently a scam as these new shells have no cellar or cold room and sometimes no bar! In fairness they can be fitted out and customised to a certain extent. The Top of the Morning in Victoria Park is a good example where this is happening now. In these circumstances, if it is the building which is special, say for historical reasons, then the demolition must be fought on heritage grounds. That was covered in Parts 3, 4 and 5 and is one of the reasons that CAMRA maintains its coveted regional and national inventories and has worked tirelessly with Historic England to achieve statutory listing for pubs that we believe have significant heritage value.

Supporting Pubs

It is acknowledged that London’s boozers are under sustained, targeted, deliberate and very aggressive attack. Heaven knows we have covered enough real stories in these pages. When we argue for tougher planning protection, politicians are quick to retort that they do not want unnecessary red tape ‘propping up’ failing boozers. Whilst we know that the profitable ones are attacked along with the underperforming pubs, there is a fundamental point there which rings true. Pubs have to be relevant to their communities and in return people need to use their pubs, as often as they can afford to, and spread the love around different pubs in our neighbourhoods, and throughout our city. The brilliant crawls organised by Jane Jephcote and the London Pubs Group are a great way to introduce yourself to a wider range of pubs across different parts of London but also to meet like minded folk who appreciate everything a pub has to offer. Details are on our diary pages or on the London Pubs Group website over at http://www.londonpubsgroup.camra.org.uk/

Next time a friend or colleague suggests a meet up, why not make sure it takes place in a pub? When catching up with family this Christmas, why not visit some different pubs? Whatpub.com is a very handy and accurate guide so you can check things like food times, beer range, operator details, transport links. Like the Prince of Wales has said, “make the pub the hub!” We know the answer is not as straightforward as “use it or lose it”, but with all the planning protection and statutory listing in the world, a pub with no customers is not going to be viable. However much we have grasped on the detail of the planning system, localism, community rights, the Pubco business model, the threat to pubs, the imperfections of the free market, we can all do one very simple thing which is easy, very accessible and tremendous fun, and that is to drink healthy cask beer in London’s pubs, evangelise about it, tell your friends and family, repeat often.

I hope you have enjoyed my pub saving toolkit. All six parts are available on our website and if you print them out and bind them, come and find me in the pub and I will sign it for you for the price of a pint. Here’s to another year of fun in London’s pubs.

James Watson
Regional Pub Protection Advisor