THIRD PARTY APPEALS: PRAGMATISM AND PRINCIPLE
Geraint Ellis1
Paper published in the Journal of Planning Theory and Practice, Vol. 7 No. 3, as the lead paper
in an Interface section on third party planning appeals
Introduction
Although not a popular focus of academic or practitioner debate, it is widely appreciated that
planning appeals provide a critical arena for defining the appropriate scope and objectives of
discretionary planning systems such as in Britain, Ireland and those in Australasia. Indeed,
Davies et al (1986) suggest that by offering an in-depth consideration of policy objectives based
on inputs from a range of interests and set in a context of achieving national consistency,
appeals arguably represent the “true objectives” of a discretionary planning system. If this
premise is accepted, one can then argue that the institutional arrangements and outcomes of
the appeals process have the potential to reveal some of the deeper values that inform land use
regulation.
Yet the appeals process highlights a curious contradiction. On the one hand we have dominant
normative principles that suggest that “good” planning arises from enhanced public participation,
community engagement and collaborative discourse, yet in many planning systems, including
Britain, the critical mechanism of having a right to appeal is denied to everybody except the
developer (the first party). In effect, this prioritises the interests of one group of stakeholders in
the planning process over all others. Furthermore, in those planning systems that do have a
Third Party Right of Appeal (TPRA), such as in the Irish Republic, the provision has been placed
under substantial pressure for reform or abolition, resulting in a long term trend to cumulatively
introduce sanctions that limit the scope and availability of such appeals. This suggests that even
where they are an established mechanism, third party appeals tend to be tolerated rather than
celebrated.
This apparent contradiction seems to divide the planning community, with government
(particularly in Britain), administrators and the development industry being strongly opposed to
the introduction of TPRA primarily on pragmatic grounds of trying to safeguard the efficiency of
the planning process. On the other side of the argument there is popular opinion, community
interests and environmental NGOs who support the idea of TPRA, primarily based on the
1
School of Planning, Architecture and Civil Engineering (SPACE), Queen's University, Belfast, David Keir
Building, Stranmillis Rd, Belfast, BT9 5AG. e-mail: [email protected], Tel: +44 02890974370.
1
principles of equity and natural justice. Within Britain, support for TPRA has been backed by a
series of expert reports and investigations2 over many years, which have always been rebutted
by governments of differing political persuasions. In the middle of this debate stand planning
practitioners, who appear to be divided on this issue.
Some aspects of this topic have been recently highlighted in Britain where the last five years has
seen all its constituent planning systems consider and then reject TPRA, arguably on the basis
of little evidence and without a great deal of professional and academic debate. A significant
impetus for this debate has been an implicit threat that the absence of TPRA may be contrary to
the European Convention of Human Rights and the Aarhus Convention. Although these issues
have not been finally resolved, it now appears that such challenges will not force the introduction
of TPRA in the Britain on legal grounds, but it does remain a policy option for any government
so inclined. The various legal arguments behind these challenges will not be explored here, with
the aim of this paper to present alternative perspectives on the worth of third party appeals and
is followed by a number of other contributions that provide other views on this issue. To do this,
the article will briefly describe some key elements of the TPRA system as it exists in the
Republic of Ireland, with an attempt made to highlight the effect of this has on the functioning of
the Irish planning system. It will then go on to draw out some of the key principles that underpin
the debate.
TPRA in practice – evidence from the Republic of Ireland
When the Republic of Ireland introduced its comprehensive planning system in 1963, it was
largely based on the model established by the British 1947 Town and Country Planning Act.
However, at a time when British planning was beginning to be perceived as being overly
managerial, there was a commitment to improve on British practice and TPRA was identified
as one way of delivering this (Crow 1995). As a result, the 1963 Act introduced an unrestricted
right of appeal, with the Minister of the time stressing that “every interested person” would
have a right of appeal “if anything… leaning over backwards for the benefit of the public”
(quoted in Crow 1995, p.382). During the intervening years the TPRA mechanism has been
modified as the numbers and proportions of appeals have increased and development
interests have lobbied for an abandonment of the provision. The changes introduced over the
years have been aimed at avoiding abuse of TPRA and in making the appeal process more
2
For example TPRA have been called for by the Select Committee on Environment, Transport and
th
Regional Affairs (2000) 13 Report: The Planning Inspectorate and Public Enquiries, Royal Commission
rd
on Environmental Pollution (2002) 23 Report: Environmental Planning.
2
efficient. Most controversially, the 2000 Planning and Development Act introduced the
qualifying criteria of having to have made an observation on the original planning application,
which was accompanied by levying a fee when commenting on planning proposals. More
recently, February 2006 saw the introduction of the Strategic Infrastructure Bill 2006 that
proposes that some major development projects should be isolated from third party challenge.
Despite this, the existing TPRA retains the essence of the original provision, so that as long as
a number of basic criteria are met, anyone who made an observation to the original planning
application has the right to call for an appeal within four weeks of the local planning authority’s
decision. The appeal is then heard de novo by an independent planning board, An Bord
Pleanála, which during 20043 decided 5,111 total cases, taking an average of 14 weeks to
decide each planning appeal. A full consideration of the Irish TPRA system is beyond the
scope of this paper and a more detailed discussion of the appeal process, the roles of the
different parties involved and a more considered historical perspective have been discussed
elsewhere (Ellis, 2002, 2004), but it is worth here providing a brief vignette of the trends and
outcomes of third party appeals, as shown in Figures 1 – 5.
These graphs indicate a number of important points. First is that use of the TPRA mechanism
has increased substantially since it was first introduced. This is true in both in absolute terms,
as shown in Figure 1 and in relative terms compared to the number of first party appeals, so
that third party appeals now make up 54% of all appeals. However, while TPRA may play an
3
At the time of writing (March 2006) this is the last year for which comprehensive data is publicly available.
3
important and symbolic part in the governance of the Irish planning system, when viewed
against all planning decisions (Figure 2), the overall outcome is relatively minor. Second, third
party appeals appear to have a quite remarkable success rate, with only 1% of cases not
resulting in a significant change to the initial planning decision and 60% resulting in a refusal
of permission. This is even more noteworthy when compared to appeals made by first parties,
where 59% of appeals confirm the decision of the local planning authority. Third, a wide range
of stakeholders, but predominantly individual citizens, make use of TPRA, presumably for a
variety of purposes reflected in the range of development types appealed against.
4
Although it is difficult to ascertain whether Ireland is a suitable case for making generalisable
observations on TPRA, the above example suggests that in functional terms, third party
appeals provide the following contributions to the wider planning system.

Quality assurance
5
As we can only assume that An Bord Pleanála apply a professional and well
considered reasoning to all appealed cases, the high percentage of third party appeals
that result in a refusal of planning permission suggests that most appeals are made on
very strong grounds or put it another way, they are made against suspiciously weak
initial planning decisions. Indeed, under a system where there are both first and third
party appeals there is a process for challenging any weak decision. In contrast, in the
absence of third party appeals it will only be weak refusals that are challenged, with
any weak permissions awarded by the local planning authority being condoned by the
institutional design. From this perspective, third party appeals may offer a critical
quality assurance role, perhaps ensuring that development outcomes better reflect the
“true objectives” of the planning system.

Ameliorating externality effects
Figure 3 notes that not only do a high proportion of third party appeals in the Republic
of Ireland result in a refusal of planning permission, but that virtually the remaining
balance of cases result in an amendment of the conditions provided by the local
planning authority. It is assumed that the conditions are revised in an attempt to
ameliorate the impacts of the development in response to appellants’ concerns, be
they neighbours, regional bodies or national voluntary organisations. If this assumption
holds, TPRA therefore offer a further function of ensuring that the ultimate planning
decision reflects a more negotiated and considered outcome that may limit the
detrimental impacts of development.

Distribution of power and influence
The opportunities for third parties to challenge the decision of local planning authorities
and thus transfer the final say on a planning application to the independent planning
board both creates opportunities and subtlety redistributes power in the planning
system. For third parties, the consequences are relatively clear in that the appeal
mechanism provides them with a “trump” that they can play if they are dissatisfied with
the local authority planning decision. While this is exactly the same provision as held
by first parties, the consequences are different for third parties as any costs arising
from the delay or any revised conditions are borne, not by the appellant, but by the
would-be developer. This mechanism also clearly restricts the competency of the local
planning authority to act decisively on certain planning matters and transfers key
planning responsibilities to An Bord Pleanála. Indeed as a result of third party appeals
it is likely that virtually all major or controversial development proposals will end up
being decided by the Board. While this represents a centralisation of decision-making
power away from the local authorities, it is also likely to have more subtle power
6
effects. One way to consider this is in term of the various policy processes identified by
Healey (1990). She identifies five different ways in which planning decisions are
arrived at in planning practice, including semi-judicial (i.e. through formal hearings etc),
techno-rational (i.e. deploying the judgement of experts) and politico-rational (i.e.
decisions made in the formal arena of politics). Each of these policy processes will
favour stakeholders with different attributes and types of power – for example a
politico-rational process will favour elected political representatives, while those
holding unique or informed areas of knowledge (e.g. related to planning law or housing
forecasts) may be favoured in a techno-rational process. TPRA function to transfer a
planning decision to a different policy process, thus taking a decision out of the
politico-rational context of local authorities and, in the case of public hearings for
appeals, placing them into a semi-judicial context, with subsequent impacts for those
holding, or capable of hiring, the type of skills this policy process most favours.

Differing interpretations of policy and material considerations
The outcomes of third party appeals suggest that there are major differences between
local planning authorities and An Bord Pleanála in how they interpret policy and
prioritise different material considerations. This may reflect some form of clientism at
local or central levels, a differing emphasis placed on the balance between local and
national policy or strike a different balance between environmental protection and the
economic benefits of development. While this remains largely unevaluated, the
consequences are that in the Irish context, differences in interpretation tend to work in
favour of the appellant and against the interests of developers. This does not however
imply that this will always be the case, as it would seem that other jurisdictions with
similar appeal mechanisms have less favourable consequences for third parties – for
example anecdotal evidence would suggest that this was the case in Ontario, Canada.
Therefore, in functional terms, the role of a third party appellant is to ensure that such
differences of interpretation are applied.

Ex-ante and post facto impacts
The existence of a third party right of appeal is likely to have both post-facto and ex-ante
impacts. The post-facto outcomes have been discussed above, but one can also
speculate on the nature of the ex-ante effects. The mere existence of TPRA is likely to
influence how all three parties (i.e. developer, local planning authority, and everyone
else) approach the decision-making process at the local level. Thus developers may
alter the nature of how they represent their application and engage with other
stakeholders (i.e. would-be third party appellants). The local planning authority may
approach their decision-making duties in a different way – which could be expressed
7
either to ensure that any decision holds up to future scrutiny or conversely, could adopt a
less assiduous approach, in the knowledge that any controversial award of permission
would be appealed against if it significantly impacted on anyone else. For third party
appellants, it may mean that they place less emphasis on pre-decision discussions, in
the knowledge that they hold the “trump” of TPRA should the initial decision go against
their interest. While the impact of any ex-ante effect remains speculative and poorly
understood, it will certainly exist and as such forms a significant dimension to how TPRA
may effect a planning system.
Third party appeals thus exert a number of influences on a planning system. Some of these
are rather blatant, others more subtle and even perhaps inconsequential, but all generally
overlooked in broader debates on the worth of TPRA. For many people these may merely
represent academic semantics and that key questions will be whether the Irish planning
system makes better or fairer decisions as a result of having the TPRA mechanism and
whether it is desirable or feasible to transfer this experience to elsewhere. It will be left to other
contributors to provide comment on this, but attention is drawn to the fact that most debate on
TPRA has been dominated by such issues of pragmatism. Pragmatism does play a critical
part in delivering an effective and viable planning system and one certainly could not progress
any reasoned debate without recourse to its grounding properties. However, in terms of the
TPRA debate in the Britain, pragmatic arguments have also tended to naturally support the
interests of those with the most power in the planning system and those with the greatest
interest in maintaining the status quo, namely developers who’s “weak” permissions go
unchallenged and government, who’s key objective of a speedy and efficient administrative
system is left unquestioned. Yet in addition to issues of pragmatism, the debate on TPRA is,
or should be, based on consideration of some of the principles, or values, that the presence or
absence of TPRA supports.
A principled consideration of TPRA
It is suggested here that consideration of some of the principles behind the operation or
introduction of TPRA are just as crucial as pragmatic argument and have received much less
exposure, both in debates in the Britain and in Ireland. Some of the issues that arise from such a
perspective include:

Equity and rights in land
8
The most commonly quoted, and perhaps most persuasive, argument for the
introduction of TPRA is one of natural justice and equity between those proposing
development and those that may be effected by it. To many it appears inherently unjust
if applicants are given a right to challenge a decision that appears to unreasonably
constrain their rights in land, but deny this to those who believe that their interests may
be compromised by a proposed development. While this may appear unfair under a
political and legal system that cherishes the principle of equality before the law and
which has increasingly recognised the importance of robust environmental governance,
it can be understood (if not justified) by recognising the primacy of property as a defining
value of planning. This has been noted a range of authors (e.g. McAuslan 1980, Booth
2003) but articulated well in Krueckeberg’s (1995), suggestion that the central concept of
planning should be property, rather than land use. This is clearly seen in a historical
context in Britain when development rights were nationalised as part of the 1947 Town
and Country Planning Act - a move that was strongly perceived as taking away rights
from landowners rather than giving them to the local council on behalf of the wider
community4. This alleged injustice was deemed only justifiable if accompanied by a first
party right of appeal. Crow (1995) has therefore suggested that the first party right of
appeal is essentially a property right, rather than being an issue of wider governance.
This implies a very unified and monolithic view of property, rather than recognising that
land embodies many different forms of rights, many of which are owned communally.
The apparent naturalness of a potential developer having a right of appeal and an
institutional reluctance (in Britain) to extend such rights to third parties could be seen as
one symptom of the dominance of the ideology of private property, as noted by
McAuslan (1980). Indeed, one way to resolve this inequality short of establishing TPRA
would be to abolish the right of applicants to appeal, yet this is regarded as unthinkable,
unjust and sacrilegious. This perspective therefore suggests that TPRA do not just
highlight a crude issue of inequity that is condoned by government, but that it upholds a
certain type of inequality, that which prioritises property over other expressions of
citizenship. This is not to deny that planning systems with TPRA do not have similar
bias, but that the absence of them can be seen as one expression of it.

Participation or arbitration?
Appeals are often considered to be an action of last resort, which, in the case of first
parties, they represent a failure of negotiated settlement and an acceptance of
Indeed Heap (1997) notes that the need for planning permission was seen at the time as being “the
biggest interference with the liberty of the individual short of jail” (p. 697).
4
9
additional cost. Indeed a normative aspiration, the collaborative ideal, is to provide full
and effective pre-decision opportunities for participation and encourage discussion
between all parties involved, with the aim of securing the best possible consensual
solution in the form of a planning decision by the local authority. This participative model
is in contrast to an alternative way of allowing interests to assert their view, through
post-decision arbitration, which is effectively what TPRA provide for. Indeed, when
British and Irish planning systems are compared, it becomes clear that while Ireland
may have TPRA, its opportunities for pre-decision participation are more restricted than
those in Britain. This suggests that both systems have sought to accommodate public
input into the planning process in different ways. While normatively there is no reason
why both participation and arbitration could not be accommodated in a single planning
system, pragmatic considerations have demanded an emphasis on one or another.
Although no comment will be made here on the relative advantages and disadvantages
of these approaches, the point here it to highlight that consideration of TPRA should
include a confrontation of the values that each embodies.

Speed or Quality?
A classic dilemma in planning, most explicitly confronted during the Thatcher
administration’s reforms of British planning (e.g. Thompson, 1987) but has also been
raised in the context of New Labour’s approach to planning (e.g. Cowell and Owens,
forthcoming) is the balance between the efficiency of the planning process and the
quality of the planning decision. TPRA do clearly have implications for delaying planning
decisions and however well the process is managed, will inevitably result in additional
costs for would-be developers. However, as suggested above, in the Irish case the high
proportion of initial planning decisions amended or reversed as a result of third party
appeals is quite startling and suggests that the country derives a great deal of value from
TPRA, in the form of planning decisions that better match established policy or reduce
external costs on other interests. While TPRA are clearly not the only way of improving
the quality of planning decisions, it should be recognised that this is one of their potential
attributes and as such, should be counter-posed to the pragmatic debates that focus
entirely on the costs of third party appeals.

Forms of accountability
The key mechanism for ensuring accountability in most discretionary planning systems
is to involve locally elected representatives in shaping planning policy and deciding
planning applications. While Britain and Ireland have adopted slightly different models of
how this accountability is expressed and ignoring the occasional lapse of probity (i.e.
Doncaster and Cornwall in England and the major issues raised by the Flood Tribunal in
10
the Republic of Ireland), it is generally a well accepted and effective way of ensuring
planning decisions are fair, open and transparent. As was noted above, the effect of a
planning appeal is to give appellants power to transfer the decision-making responsibility
away from this local politico-rational process to an appeals body. In Britain such bodies
are still indirectly subject to political accountability via the Minister, while in Ireland, An
Bord Pleanála is purposefully politically independent. This allows the Board to place
political considerations to one side when evaluating development proposals, thus
resulting in what could be viewed as essentially technocratic decisions. While An Bord
Pleanála has functioned well in probity terms, it should not be overlooked that a planning
appeal acts as a mechanism that both centralises and de-politicises the decisions
making process. This also invokes a form of participatory accountability (i.e. in terms of
third parties to instigate and appeal and others to submit observations) over
representative accountability (i.e. the input of local councillors). Again, while no attempt
will be made here to apply a value judgement to this outcome, it is noted that it is
nevertheless, a consequence of TPRA and such issues of planning governance should
be placed alongside the pragmatic issues when considering the relative merits of third
party planning appeals.

Responsible and irresponsible participation?
The final principle that will be highlighted here stems from a common accusation that
TPRA will be deployed mostly by NIMBY interests and thus be counter-productive to the
public interest. Indeed in the English Green Paper, Planning: Delivering a Fundamental
Change (2002) the key argument against the introduction of TPRA was essentially that
they would be used “frivolously” and that there was no reasonable mechanism to limit
the abuse of such rights. While this provides a classic expression of the New Labour
principle of “no rights without responsibility”, it also draws on rather simplistic and
morally-suspect views of participation. It has been shown in the case of the Republic of
Ireland that third party appellants invoke a right of appeal for a wide range of reasons,
few of which conform to any notion of frivolity and many seem to view appealing as an
obligation or duty to protect an area or community, rather than as an expression of
possessive individualism often attached to NIMBYism (Ellis, 2004). Indeed, in rejecting
the calls to introduce TPRA on the basis of the threat of frivolous claims, the British
government have echoed the view of the Dobry report of 1975 that distinguished
between “responsible” participation, which deserved support and “irresponsible”
participation which needed to be discouraged. This is coded language for signifying
participation that is useful to public authorities and its antithesis, any thing that frustrates
or embarrasses the planning authority. Hopefully in the intervening thirty years we have
moved on, so that now participation is generally recognised as public good for its own
11
sake and not for any instrumental outcome. In a time of declining engagement in any
form of citizenship behaviour, it is particularly inappropriate to denigrate as frivolous or
NIMBY the actions of individuals who do feel they are acting with sound purpose.
Indeed neither should we condemn those that express private preferences in relation to
any proposed development - this is the precisely the objective point of participation.
Therefore the key issue here is the need to look past any individual cases of TPRA or
avoid focussing on the characteristics of those making third party appeals, but focus on
any benefits, or dis-benefits that they may deliver.
Conclusion
Third party appeals in planning are therefore subject to a number of competing perspectives
including those that highlight a principled position, particularly focusing on equity and
governance and those that stress pragmatic issues such as speed and administrative efficiency.
The extent to which principle and pragmatism should be balanced is of much wider significance
to understanding the nature and direction of our planning systems and tends to dictate the
degree to which planning reform is introduced as an ad hoc response to current circumstances
or whether based on a deeper vision of how best to regulate land use in the context of our
contemporary societies. Third party appeals are just one facet of this, but one that tends to
touch raw nerves in confronting the difficult balance planning must achieve between public and
private interests, between rights to property and procedural rights and between efficiency and
effectiveness. The unfortunate aspect of this is that when debating TPRA, these issues are
usually left unstated, either because the current arrangements, forged in the establishment of
comprehensive planning, are seen as appropriate or that such issues are seen as unimportant.
TPRA is, above everything else, a challenge to our capacity to deal with these complex issues
and a test of how far ideas of collaborative, environmental governance have been absorbed into
our thinking on land use regulation.
References
An Bord Pleanála (2005) Annual Report 2004. Available from:
http://www.pleanala.ie/2004AnnualReport.pdf
Booth, P. (2003). Planning by Consent. London, E and FN Spon.
Cowell, R. and S. Owens (forthcoming). "Governing space: planning reform and the politics of
sustainability." Environment and Planning C: Government and Policy.
Crow, S. (1995). "Third party appeals: will they work? do we need them?" Journal of Planning
and Environmental Law May: 376 - 387.
12
Davies, H. W. E., D. Edwards, et al. (1986). "The relationship between development plans,
development control and appeals." The Planner 72(10): 11-15.
Ellis, G. (2002). "Third party rights of appeal in planning: reflecting on the experience of the
Republic of Ireland." Town Planning Review 73(4): 437-466.
Ellis, G. (2004). "Discourses of objection: towards an understanding of third party rights in
planning." Environment and Planning A 36: 1549-1570.
Healey, P. (1990). "Policy processes in planning." Policy and Politics 18(1): 91-103.
Heap, D. (1997). "50 years of the Town and Country Planning Act 1947, or the door by which I
entered." Journal of Planning and Environmental Law 697.
Krueckeberg, D. A. (1995). "The difficult character of property: to whom do things belong?"
Journal of the American Planning Association 61(3): 301 - 309.
McAuslan, J. P. (1980). The Ideologies of Planning Law. Oxford, Pergamon.
Thompson, R. (1987) “Is fastest best? The case of development control”, The Planner, 73(9),
pp. 11–15.
13
Figure 1 – Number of third party appeals and applications awarded permission 1977- 2004
(Source: An Bord Pleanála Annual Reports and Department of the Environment, Heritage and Local Government Planning Statistics)
2500
70000
50000
1500
40000
30000
1000
20000
500
10000
0
0
19
77
19
78
19
79
19
80
19
81
19
82
19
83
19
84
19
85
19
86
19
87
19
88
19
89
19
90
19
91
19
92
19
93
19
94
19
95
19
96
19
97
19
98
19
99
20
00
20
01
20
02
20
03
20
04
Number of 3rd party appeals decided
2000
Year
3rd party appeals decided
Total planning applications given permission
14
Number of planning permissions awarded
60000
Figure 2 – Third party appeals and all planning decisions, 2004
(source: An Bord Pleanála Annual Report 2004 and Department of the Environment, Heritage and Local Government Planning Statistics, 2004)
100%
All planning applications
85.8%
All planning decisions
All planning permissions
71.8%
All normal planning appeals made (1st
and 3rd party)
5.6%
1.9%
All 3rd party appeals formally decided
3rd party appeals resulting in a refusal
of permission
1.1%
3rd party appeals resulting in
permission with revised conditions
0.7%
0
10000
20000
30000
40000
15
50000
60000
70000
80000
90000
100000
Figure 3 – Outcome of third party planning appeals, 2004
(Source : An Bord Pleanála website: http://www.pleanala.ie/)
Permission Granted with same
conditions (3%)
Permission granted with revised
conditions (39%)
Permission refused (60%)
16
Figure 4 – Appeals made by different types of third party appellant, 2002
(Source: analysis by G. Ellis from primary data on An Bord Pleanála website: http://www.pleanala.ie/)
State/Semi-State
bodies
2%
Businesses/Trade
Associations
5%
Voluntary
organisations
7%
Regional bodies
2%
Community and
other local groups
10%
Individuals and
informal groups
74%
17
Figure 5 – Third party appeals by development type, 2002
(Source: analysis by G. Ellis from primary data on An Bord Pleanála website: http://www.pleanala.ie/)
Infrastructure
6%
Other
6%
Extensions and alterations
15%
Adverts
0%
Commercial
11%
Industrial
4%
Agriculture
2%
Mixed development
5%
Single housing
27%
Other residential
24%
18