Going To Appeal

CONGRATULATIONS – hopefully you are reading this section because you have beaten McDonald’s at the planning application stage and are now getting ready to fight them at appeal. These pages aim to provide an overview of the appeal procedure, offer useful sources of information and share with you the experiences of communities who have trodden this path before you.

Please note that under the planning system in England, objectors have no right of appeal whatsoever if the council grants an unwanted planning permission. Objectors can only challenge the decision in the High Court, and we don’t know of any objectors who have done this and won. But we know of a few who have lost and have ended up with legal costs against them running into £00,000s. This is why it’s so important that you get your planning arguments right first time to get the application turned down at the local level. If the council grant planning permission, there will be little you can do, unless you’re willing to risk your home, savings or any other assets that you may own.

McDonald’s almost always threaten councils that they will go to appeal and ask for costs. They have been known to approach local councils after an application has been refused, saying that they will withdraw their appeal if the council changes its mind. This is a decision that has already been taken by a vote in a democratic forum, and yet McDonald’s try to subvert this process by trying to strike deals with councillors behind the scenes! Therefore, even after the decision has been made, stay in touch with officers and key councillors to find out what’s happening and if McDonald’s have been pressurising them, and the council’s stance on this. Quite often, McDonald’s bullying tactics have the effect of strengthening councillors’ resolve against the application even further – especially if they think votes are at still at stake – so stay interested and in touch.

The Appeal Process

After the planning application has been refused, the council will issue a decision notice, which should also be copied to those who formally objected by writing letters to the planning office. McDonald’s have six months from the date of this decision notice in which to lodge an appeal. Appeals are made to the Department of Transport and Local Government Regions (DTLR) and are judged by the inspectors in the DTLR’s Planning Inspectorate department. Inspectors are planning professionals, and these decisions are always made on rational, planning grounds – NEVER political or emotional ones. Some appeals are actually referred to the Secretary of State for decision, but these tend to be large, contentious ones – for example, a new airport terminal.

If you wrote an objection letter to your local planning office, they should write to you to advise you that McDonald’s have lodged an appeal.

The appeal will be allocated a reference number by the Planning Inspectorate (which will be different to the planning application number), which should be used in all correspondence relating to the appeal. The Inspectorate will arrange with your local council to view the letters of objection, but you can still write directly to the Inspectorate with your comments and we recommend that you do this. But please don’t write the same letter as the one you sent to the planning office (the Inspectorate will have already seen this), nor should you inundate the Inspectorate with standard letters. But get as many people as possible to write to explain their objections / comment further. These letters must be on PLANNING GROUNDS ONLY. The inspector will ignore all non-planning objections. Please note there is a time limit by which you have to do this, and if you miss the deadline the Inspectorate will not take your letter into account (see later, website reference for appeal procedure guidance notes).

The address to write to is:

The Planning Inspectorate
Temple Quay House
2 The Square
Temple Quay
Bristol
BS1 6PN

Once you know your appeal reference number, find out the name of the Inspectorate’s officer who is dealing with it so that you can address your correspondence to the right person.

The appeal is against your council’s decision – not you or your community. But you and your community can still participate in the appeal and with no risk of costs being awarded against you (this risk is the council’s). Participation by local people can be critical in achieving a successful outcome, your enthusiasm and local knowledge is often greater than that of the local authority officers who are responsible for putting forward the council’s case. The community of Abergavenny in Wales beat McDonald’s at public enquiry, largely due to the case put by local people.

Local participation is also welcomed by the DTLR, and the Planning Inspectorate’s officers that deal with the appeal tend to be extremely helpful – they appreciate that you are not planning experts and will guide you on the procedural aspects. Please note that they are not there to advise you / comment on your planning case and you should not ask them to do so.

The appeal can take one of three formats:

Written.
Hearing.
Inquiry.

In the case of a written process, local community groups (e.g. the residents’ association / campaign group ) can submit their own written case in addition to the local council (who are obliged to submit). In the case of hearings and inquiries, a representative from the local community may speak (in the same way as at the local council planning meeting). Inquiries are more complex, and both McDonald’s and your local council will have legal representatives who present evidence and cross-examine witnesses. Local communities may also participate in this way, and may submit their own evidence and also have their own legal representation if they wish. The DTLR emphasises the inspector’s role in protecting residents etc. from hostile questioning by the lawyers. So don’t be intimidated or put off – go for it!

If you are going to submit your own case in addition to your council, we recommend that you liase closely with your local councillors to ensure that your respective cases are complementary. However, as we have pointed out earlier, don’t rely on your local authority officers gathering all the facts and figures and doing a detailed job – do your own.

For example, if the planned development will result in an increase in road traffic (which it invariably will), undertake your own survey of present traffic levels in the affected road(s) your area. Then do a comparable survey of a similar McDonald’s establishment, both traffic levels in the affected road(s) in that area and the traffic using the McDonald’s site. Then do your own projections of likely traffic visiting the planned site (the store you are trying to stop) based on what you noted at the comparison site. This is what the Residents Against McDonald’s (RAM) group from Hinchley Wood, Surrey (England) did, and they presented their own submission to the Planning Inspectorate when McDonald’s took their local council to appeal. The inspector judged that the local community’s traffic projections were more realistic than McDonald’s (the latter being significantly lower, of course) and that the proposal was detrimental to pedestrian safety. McDonald’s lost. The Hinchley Wood decision letter demonstrates that the inspector will take into account residents’ concerns, but they have to be within the context of planning grounds.

Communities that try to fight the case on litter, noise or smells always lose. We have obtained some abstracts of appeals which gives you an indication of the thinking behind the inspectors’ decisions. If you feel that any of these appeals are similar to your own case, you might consider obtaining a copy of the decision letter to help you understand how an inspector is likely to judge such circumstances. Copies of appeal decision letters are available from the Planning Inspectorate’s archives library, contact number 0117 372 8754. The cost per letter will normally be between £6-£8 (depending on the size of the letter).

If you are involved with an appeal, please could you get hold of all McDonald’s submissions / proofs of evidence and contact us at stopthestore@mclibel.org so that we can arrange to obtain a copy from you. We are trying to build a library of these so that we can advise communities on what McDonald’s argue at appeal and also examples of their contradictions. If our advice pages have been helpful to you, please help us to help others.

Prior to the decision (written appeal) or a hearing / inquiry taking place, the inspector will visit the site in question. Find out when the site visit is scheduled – the DTLR officer responsible for your case will be able to tell you this. We suggest that you nominate one person in your group responsible for contact with the DTLR officer and also the inspector, and put themselves forward as a link between the DTLR and the community. This person should also keep a note of dates, times and content of any telephone contact.

People are not allowed to lobby the inspector or present their case at this visit. There are very strict rules about what can / cannot be said to the inspector (see the Planning Inspectorate’s guidelines, later). We recommend that any contact with the inspector at the visit is handled by your nominated contact person on behalf of the community, and that he / she is VERY CLEAR about and ABIDES BY the rules on this. A representative from your local council will probably also be present at the site visit, we suggest that your nominated person work closely with him / her on managing the site visit.

Please don’t put the inspector in an untenable position by approaching him / her in a way that is outside the rules – however tempting – you will be doing your cause more harm than good. It is perfectly acceptable for a group of residents to be present during the site visit. But it is essential that any show of strength is a ‘quiet one’. Banners / placards and T-shirts with slogans are fine. But people MUST NOT try to present their case to the inspector here – you must resist the temptation. It is very likely that a representative from McDonald’s will also be there. If the appeal decision goes against them, they may well try to claim that the inspector was unfairly influenced by noisy protestors. So don’t give them the opportunity.

If you have participated in an inquiry, you will automatically receive a copy of the inspector’s decision letter. In other types of appeal (written / hearing) , or if you have not participated, you can still ask the Planning Inspectorate (in writing) to receive a copy.

The appeal process and guidelines for people (such as local residents) who wish to take part in an appeal are detailed in the Planning Inspectorate’s circular 05/2000 which is available on their website at: www.planning-inspectorate.gov.uk/planning_appeals/guide_to_taking_partbpr_toc.htm

For other useful website information on appeals see:

www.planning-inspectorate.gov.uk/making_appeals

www.planning.dtlr.gov.uk/guide/guide.htm#7

What Will McDonald’s Do?

McDonald’s tend to do one of three things in respect of appeal:

Threaten to appeal but then not do it (but don’t count on this).

Lodge an appeal but then withdraw it before the appeal is heard. However, don’t forget they have two applications, and even if they withdraw one they’ve still got the other which can be lodged within the six-month timescale. Until this time period has elapsed, always work on the basis that they will go ahead.

Lodge an appeal and go ahead with it.

McDonald’s will submit comprehensive information compiled by the consultant companies who work for them, such as traffic impact assessments, noise assessments and possibly air quality assessments (a more recent move, we believe). They always field the same consultants who often produce the same old stories that tend to get accepted as received wisdom. Unfortunately, once an appeal has been judged no-one ever goes back and checks to see if these consultants were right – so they get away with it!

You can usually obtain their submissions before the appeal is heard / decided – so get hold of these documents and look for the flaws in the argument. For example, if they are claiming a certain level of traffic based on a comparable site, go and count the traffic there yourself to check it out. In presenting a case like this, you may well need someone with planning expertise in your group, or advice from a specialist at a free planning advice centre.

Historically, McDonald’s have tended to win at appeal. However, in more recent years, they seem to be on a back foot and are either not appealing every time or are withdrawing before the appeal is heard. They are also beginning to lose appeals where local people have actively participated and produced compelling planning arguments.

Whilst their appeal withdrawals may be partly due to their financial problems and the decline in the junk food industry in the developed world, if they were really confident of winning – surely they would go ahead and appeal?

We think that they are backing off because communities have got a lot better at fighting them in recent years, and the risk of McDonald’s losing is higher than ever. General opposition against the company has grown due to bad publicity, the issues of the company’s bad practices exposed in the McLibel trial and a growing awareness of the company’s arrogance and bullying tactics. It’s well known that bullies back off when people stand up to them. In addition, local communities have become more sophisticated in their ability to fight them on planning grounds, through sharing information and networking – and the rise of the Internet has played a large part in this.

So don’t be deterred – they can be beaten at appeal – go for it!

And please let us know how you get on – Good Luck!