Hearing or inquiry: choosing an appeal procedure

You express a preference for the appeal procedure on the appeal form. The Planning Inspectorate decides it. That distinction catches out appellants who assume that asking for an inquiry gets them one, and it explains why most section 78 appeals end up dealt with by written representations whatever the parties wanted.

The test the Inspectorate applies is whether the issues can be understood and resolved on the papers, whether a discussion led by an inspector would add something, or whether the evidence has to be tested by cross-examination. Cost and programme follow from that answer rather than driving it.

What distinguishes the two procedures

A hearing is inquisitorial. The inspector runs a round-table discussion, asks the questions, and controls the agenda. Advocates are unusual and cross-examination does not happen. The atmosphere is closer to a technical meeting than a courtroom, and a well-prepared applicant can speak for themselves.

An inquiry is adversarial. Each main party is normally represented by an advocate, witnesses give evidence on the basis of written proofs, and each witness can be cross-examined by the other side. Third parties can appear. The inspector intervenes but does not lead.

The difference in feel matters less than the difference in what each procedure can do. Cross-examination exists to test evidence that is contested on the facts. If nobody disputes the facts and the argument is about the weight to give them, cross-examination adds cost without adding much.

The criteria the Inspectorate applies

The Inspectorate publishes procedural guidance setting out the criteria, and they are worth quoting in your covering letter rather than asserting a preference.

An inquiry is indicated where the evidence needs testing through formal cross-examination, where complex or novel planning issues arise, where legal submissions are likely, where there is substantial local interest justifying a public forum, or where the appeal turns on the credibility of expert opinion on matters such as viability or highway capacity.

A hearing is indicated where the issues are not complex, where no cross-examination is needed, where the site inspection will be central to understanding the case, and where a discussion would help the inspector understand a scheme that is hard to explain on paper. Small housing schemes with a design or amenity dispute often sit here.

Written representations remain the default for the great majority of appeals, and all householder appeals go this way on an expedited timetable.

Evidence and how it is handled

The documents differ more than people expect.

The statement of common ground does a lot of quiet work in both procedures. Everything the parties agree is removed from the hearing time, which shortens the event and focuses the inspector. On an inquiry it is the difference between three days and five.

Where viability is the disputed issue, an inquiry is usually unavoidable, because the appraisal inputs have to be tested line by line. That is a specific kind of expert evidence and is worth preparing on the same footing as the original Viability Assessment, which our comparison of the viability and affordable housing routes sets in context.

Cost and programme

Written representations cost the least and usually run fastest. A hearing adds the cost of preparation, attendance for a day, and often a planning consultant rather than an advocate. An inquiry adds counsel, witness preparation, a venue, and sometimes a programme officer.

Be realistic about the multiple. An inquiry is not a slightly more expensive hearing. It is a different order of commitment, and the decision to go that way should be made on the value of the permission rather than on how strongly you feel about the refusal.

Against that, inquiries have been run to fixed early dates since the arrangements introduced after the 2019 review of inquiry timescales, which removed much of the open-ended delay that used to make them unattractive. The programme is now front-loaded. You are expected to know your case, your witnesses and your topics at the point of lodging.

Costs awards are available in every procedure, on grounds of unreasonable behaviour by either side. They are not awarded because you won. They are awarded because the other party behaved unreasonably and caused you to incur expense you should not have had to.

Asking for a change of procedure

Either party can make the case for a different procedure, and the Inspectorate can change it on its own initiative, including after the appeal has started if the issues turn out differently.

Make the argument in writing at the point of lodging, in a paragraph that maps your case onto the published criteria. Name the disputed matters, say why each one needs testing rather than explaining, and identify the witnesses. An assertion that the appeal is important to you carries no weight. A statement that the highway authority's trip generation figures are contested on methodology and that the author needs to be questioned carries a great deal.

Local planning authorities sometimes request an inquiry for reasons of local politics rather than evidence. That request is assessed on the same criteria as yours.

One practical point on timing. The procedure decision usually arrives within a few weeks of the appeal being accepted, and it shapes everything after it, including whether you need to instruct counsel and how many expert witnesses to brief. Budget for the possibility that you asked for a hearing and were given an inquiry, or the reverse, because reworking the case after that letter arrives is where appeal costs run away.

Preparing for whichever you get

For a hearing, prepare to explain rather than to argue. Bring the drawings at a size people can read, know the development plan policy numbers, and have an answer ready for the obvious question about the reason for refusal. The inspector will work through an agenda topic by topic, so structure your material the same way.

For an inquiry, the proof of evidence is the case. Write it as the document that would persuade on its own, keep the summary properly short, and make sure every factual assertion has a source your witness can point to under questioning. Anything in your original application documents that was loose will be read back to you. That is a reason to get the Planning Statement right at the start rather than treating it as a validation formality.

For both, agree as much as possible with the authority in advance. Time spent on the statement of common ground is the best value in the whole process.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

Browse the PlanScope report types to see which supporting documents the appeal is likely to turn on.

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