Appeal — Informal hearing — Circular 15/96 informal hearing — Whether appellant given a fair hearing
The appellant was refused planning permission by
the second respondent planning authority to carry out alterations to existing
buildings to provide a single-storey agricultural building for ostrich breeding
operations. The appellant appealed against that decision. In February 1997 an
informal hearing was held, as opposed to a public local inquiry. At the
hearing, the appellant, who was mistaken as to its procedure and anticipated length,
failed to ensure that one of his witnesses had considered a business plan he
had prepared. The inspector did not adjourn the hearing to allow the witness to
consider the business plan and provide assistance to the inspector on it. The
inspector dismissed the appellant’s appeal. The court below dismissed the
appellant’s application to quash the decision of the inspector. The appellant
appealed to the Court of Appeal contending, inter alia, that he was not
given a fair hearing by the inspector.
Whatever procedure is followed, the strength of a
case can be determined only upon an understanding of that case and by testing
it with reference to propositions in the opposing case. At a public local
inquiry the inspector, in performing that task, usually has the benefit of
cross-examination on behalf of the other party. If cross-examination
disappears, the need to examine propositions in that way does not disappear
with it. Further, the statutory right to be heard is nullified unless, in some
way, the strength of what one party says is not only listened to by the
tribunal, but is assessed for its own worth and in relation to opposing
contentions. There is a danger, upon the procedure now followed by the
Secretary of State for the Environment of observing the right to be heard by
holding a ‘hearing’, that the need for such consideration is forgotten. The
danger is that the ‘more relaxed’ atmosphere could lead not to a ‘full and
fair’ hearing, but to a less than thorough examination of the issues. A relaxed
hearing is not necessarily a fair hearing. The hearing must not become so
relaxed that the rigorous examination essential to the determination of
difficult questions may be diluted. The absence of an accusatorial procedure
places an inquisitorial burden upon an inspector. A fair and thorough
investigation can be expected by a party, who has the right to be heard,
whichever procedure is followed. The inspector, possibly put off guard by the
relaxed informality of the procedure he was required to follow, did not provide
the fair hearing required by the statute. Each case
inspector’s duty to ask questions: see p61E.
Application for leave to appeal
This was an application for leave to appeal by
Linden Prescott Dyason, out of time and, if leave granted, an appeal against
the decision of Mr Christopher Lockhart-Mummery, QC, sitting as a deputy judge
of the Queen’s Bench Division, dismissing his application to quash the decision
of the Secretary of State for the Environment, who, by his inspector, dismissed
his appeal against the refusal by Chiltern District Council to grant planning
permission.
Solicitor) represented the first respondent, the Secretary of State for the
Environment.
Chiltern District Council) represented the second respondents.
PILL LJ: This is an
application for leave to appeal out of time against the decision of Mr
Lockhart-Mummery QC, sitting as a deputy High Court judge on June 10 1997, with
the appeal to follow if leave is granted. The judge dismissed the application
of Mr Linden Prescott Dyason (the applicant) to quash the decision of an
inspector appointed by the Secretary of State for the Environment (the
Secretary of State) given by letter dated February 19 1997. Having conducted a
hearing on February 5 1997, the inspector dismissed the applicant’s appeal
against the decision of Chiltern District Council (the second respondents) to
refuse planning permission for the carrying out of alterations to existing
buildings to provide a single-storey agricultural building for ostrich
breeding, rearing and general storage on land at Pathfinder Farm, Ramscote
Lane, Chesham.
Leave is required because the applicant was about
nine weeks out of time following the decision of the judge. The applicant
claims that there was a misunderstanding between him and the Civil Appeals
Office. It appears to me that the important consideration in deciding whether
to grant leave in the present case is whether there is merit in the appeal.
Submissions were made on the basis that, if leave were granted, the submissions
upon leave would be treated as the submissions on the appeal.
There has been considerable litigation in relation
to planning aspects of the ostrich breeding operation. For present purposes
however, it is necessary to consider only the planning appeal already
mentioned. The operation is at present conducted in a substantial building on
two floors, which is the subject of enforcement procedures. The planning
application involved a building of reduced height. The height of the eaves
would be
opposed by the second respondents on environmental grounds. The site is within
the Metropolitan Green Belt and Chilterns Area Of Outstanding Natural Beauty
(AONB). The issues identified by the inspector were:
Whether the development would be unacceptably
harmful to the character and appearance of the area and, if so, whether there
is sufficient agricultural justification which outweighs this objection.
The applicant appears in person, as he did before
the judge and at the hearing conducted by the inspector. Both respondents
appear by counsel, the second respondents only to make submissions, which do
not in the event arise, upon an injunction. The applicant makes a wide ranging
attack upon the inspector’s decision. He acknowledges that some of his
submissions, as the learned deputy judge rightly recognised, amount to attacks
upon the planning judgment of the inspector. However, the reasoning and
conclusions of the inspector are also challenged and it is submitted that the
appellant was not given a fair hearing by the inspector.
In a conclusion upon the environmental effects of
the proposals which, in my judgment, cannot be successfully challenged in the
courts, the inspector stated:
To my mind, the bulk and overall size of the
building, particularly its length, would be such that despite its location in
the foot of the valley, it would appear as a prominent, obtrusive structure,
alien to its relatively isolated rural surroundings, and be severely
detrimental to the character and appearance of the area.
The inspector went on to say that it was:
nevertheless necessary to consider whether there
is sufficient agricultural justification for the development which should
override what I see as strong environmental objections.
Having considered the agricultural justification
advanced, the inspector stated:
In summary, I am not convinced that the current
scale of operations justifies a building of the size proposed and there is
insufficient detail to make an allowance for any future expansion of the
business. The proposal would therefore be in conflict with the aims and
objectives of the Development Plan countryside policies which have been
identified, and be contrary to the main objective of designating an area as an
AONB, namely the conservation of the natural beauty of the landscape.
For the Secretary of State, Mr Timothy Mould
accepts and asserts that it follows from that paragraph that the essential
issue was size of the building. The objection is not to an agricultural
building as such in this location, but to the size of the building proposed. In
the inspector’s
business, which it was claimed would occur, justified a building of the size
proposed.
The proceeding on February 5 1997 was what is
described in the Department of the Environment Circular 15/96, entitled Planning
Appeal Procedures, as a ‘hearing’ as distinct from a public local inquiry.
The nature of ‘hearings’ is considered at para 18 of the circular and Annex 2
provides a ‘code of practice for hearings’. I will consider them later in this
judgment. There is no challenge to the power of the Secretary of State to
direct a hearing rather than a public local inquiry.
It needs to be noted that at the hearing before
this court there is very considerable information from the applicant, in his
affidavits and his submissions, as to what happened at the hearing. There is
from the inspector only a short affidavit dealing with one point. Detailed
affidavits in reply to those of the applicant have not been filed, and no
application has been made for an adjournment to permit further evidence. The
court does not have the inspector’s full account. I well understand the
undesirability of the inspector appearing to enter the arena by giving his
detailed account of what happened at the hearing before him. The possibility of
such an account being required will of course be very considerably reduced if
the material points are sufficiently considered in the decision letter.
The applicant submitted written statements to the
inspector in advance of the hearing as required by the circular. These included
his ‘business plan’ in relation to the project. Having regard to the
inspector’s conclusion, a consideration of that plan was of the greatest
importance to the decision upon the appeal.
In his list of documents, the inspector refers to
‘Appendices to Mr Dyason’s statement’ and to ‘four documents relating to
ostrich farming submitted by Mr Dyason’, but the respondents cannot confirm
what those documents were. For present purposes, I accept Mr Dyason’s
contention that the submitted documents included a ‘revised barn layout’, which
made provision for ‘concrete chick runs’ and other material dealing with the
size of the building claimed to be required for the operation, including an
article based on farming regulations in Denmark, which set out the required
minimum area per bird. These areas are said to be necessary to comply with an
EU directive which is now in force, though it was not in force at the time of
the hearing before the inspector.
The applicant was undoubtedly trying to make the point
before the inspector that a building of the size for which permission was
sought was indeed required. In his written statement for the hearing, under the
heading ‘Size’, the applicant stated that: ‘The appellant will show that the
present space requirements of the agricultural business are greater than the
space within the existing building’. Moreover, upon the inspector’s conclusion,
even if the size of the building could not be justified upon the scale of the
existing operation, it would also be possible to justify it on the basis of
future expansion of the business. The second respondents called before the
inspector, Mr CJ Duncan, an agricultural
operations in England.
Before turning to the inspector’s conclusions, I
consider one aspect of the claim that there was no fair hearing, namely the
complaint that the inspector allowed the applicant insufficient opportunity to
call evidence from Mr RD Loxam, the then president of the British Domesticated
Ostrich Association. Mr Loxam arrived at the hearing while it was taking place.
He had not been sent the business plan in advance on the ground, now accepted
by the applicant to be mistaken, that if the plan had been sent to Mr Loxam in
advance, the inspector might have been under the impression that Mr Loxam’s
opinion was unfairly influenced. The applicant believed that the hearing would
last at least a full day and that Mr Loxam would have time to study the plan
during the course of the hearing. In the event, the hearing finished, subject
to site inspection, at about noon and Mr Loxam was unable to assist.
In his affidavit, the inspector says that when Mr
Loxam explained that he could offer no assistance as he had not seen the business
plan, ‘the applicant did not pursue that point or any other matter with Mr
Loxam. I refute the suggestion that I in any way attempted to cut short
anything that Mr Loxam might have wished to say’. An affidavit from Mr Loxam
was produced before this court, but, Mr Mould having understandably objected to
its late production, I do not propose to have regard to its contents. The
applicant has strenuously argued that the inspector appeared to be in too much
of a hurry, but I do not base my conclusion upon that assertion as such.
The inspector dealt with the claimed agricultural
justification as follows:
It is nevertheless necessary to consider whether
there is sufficient agricultural justification for the development which should
override what I see as strong environmental objections. Your client contends
that the ostrich enterprise demands a building of the current size, although he
accepts that with difficulty the business could operate with the reduced floor
space which is now proposed. I recognise the argument which has been forcefully
put that washing facilities, incubator, isolation, hatchery, sorting area and
brooder rooms should be provided within a single building, to avoid as far as
possible contamination of eggs and young stock. I am advised also that an
indoor exercise area is required, but I note that there is no reference to this
on the submitted layout plan.
At present there are nine female and six male
ostriches on the unit. I have been made fully aware of the egg laying capacity
of the birds, the incubation period, and the accommodation needed during all
stages of development up to and including maturity. The Council produced
evidence, which has not been disputed, of the building floor space available,
relative to the number of ostriches, on other ostrich farms, which suggests
that even if the number of females was increased to fifteen, the proposed floor
space would be approximately double that which is reasonably necessary, even
allowing for a generous comparative approach.
The appellant states that the enterprise has
passed the embryonic stage which was how my colleague Inspector described the
business some two
T/APP/C/94/632775 and 633071/P6 dated 3 January 1995). He describes the business
as now having hatched. However, on the basis of what I was told, I am left in
considerable doubt as to the firm intentions of the appellant, and the
direction in which he envisages the business will proceed. Emphasis was put on
the need for flexibility in relation to egg production, whether they are
produced solely from birds on the holding or bought in, the option of producing
birds for sale as breeding stock, or for continuing development to the point
when they become available to the meat trade. I also heard firm references to
the future need for slaughtering facilities on individual farms, but this has
not previously been raised by the appellant.
Finally, it was emphatically put that ostrich
farming in this country is very much in its infancy, and the potential for
development and expansion is vast. The financial implications of national
expansion, and the availability of adequate meat supplies to match demand are
an unknown factor. From the information I have been given, it is not possible
to forecast how such developments would affect the appellant’s business.
The applicant’s central complaint about that
appraisal is that it is said to demonstrate that the inspector had insufficient
regard to the business plan and the other documents he submitted. Two factual
errors are alleged: first, that the inspector is wrong in saying that no
‘indoor exercise area’ was shown; and, second, that it ‘has not been disputed’
that ‘the proposed floor space would be approximately double that which is
reasonably necessary’. Those statements, as Mr Mould points out, are literally
true. No indoor exercise area was shown on the ‘submitted layout plan’, and Mr
Duncan’s evidence about other ostrich farms in England was not disputed.
The statements did, however, with respect, tell
only a part of the story. The first was incomplete, because an indoor exercise
area was shown on the revised plan submitted with the business plan and, the
second, because the area required for the operation was in dispute even though,
as the inspector correctly pointed out, there was no evidence to contradict
what Mr Duncan said about other farms in England.
Complaint is also made about the inspector’s
statement that he was ‘left in considerable doubt as to the firm intentions of
the appellant’ and as to his conclusion, set out earlier in this judgment, that
there was ‘insufficient detail to make an allowance for any future expansion of
the business’. The inspector was not entitled to reach those conclusions, it is
submitted, upon the sparse inquiry at the hearing into those matters. Mr Mould
submits that the contents of the above paragraphs demonstrate that the
inspector had taken into account the contents of the business plan, which he
said he had read.
Section 78 of the Town and Country Planning Act
1990 confers a right to appeal against the refusal of an application for
planning permission. Section 79(2) provides that:
Before determining an appeal under Section 78 the
Secretary of State shall, if either the appellant or the local planning authority
so wish, give each of them
Secretary of State for the purpose.
That is the ‘statutory right to be heard’
mentioned in Circular 15/96. In this case, the power to make the decision was
transferred to the inspector appointed.
In para 1 of the circular, it is stated that:
the appeal process is designed to be as efficient
and user-friendly as possible, involving the best possible use of resources,
whilst upholding the principles of fairness, thoroughness and consistency.
The circular provides that:
it is henceforth to be the Planning Inspectorate
rather than the parties who will decide whether that right will be observed by
holding a public local inquiry or by holding a hearing.
The opening paragraph of the circular goes on to
state that:
Planning inspectors are urged by the Secretary of
State to exercise tighter control over advocacy and cross-examination and to
curtail excessive or ‘over-aggressive cross-examination’.
That last intention is admirable. Para 18 of the
circular provides:
The hearings procedure is simpler and quicker
than that for inquiries. It enables the parties to present their case fully and
fairly in a more relaxed and less formal atmosphere than at an inquiry. It
usually takes the form of a round-the-table discussion led by the Inspector.
Without formal cross-examination or advocacy, hearings can be much less
daunting for unrepresented parties. Where one or other of the parties has
exercised their right to be heard, the Department’s policy is to promote the
use of hearings in preference to inquiries for appropriate cases. Hearings are
not suitable for all planning appeals, particularly where a substantial number
of third parties wishes to speak or where formal cross-examination is required.
I do not propose to set out the code of practice
in Annex 2 in full. The flavour is given in paras 2 and 3:
2. This code contains the procedure which the
appellant and the local planning authority should follow when a hearing is to
be held. The procedure is intended to save the parties time and money and to
allow the Inspector to lead a discussion about the issues. The aim is to give
everybody, including interested third parties, a fair hearing and to provide
the Inspector with all the information necessary for his decision, but in a
more relaxed and less formal atmosphere than at a local inquiry. Although the
code does not have statutory force, all parties to a hearing are expected to
comply with it.
3. A hearing is suitable where the development is
small-scale; there is little or no third party interest; complex legal,
technical or policy issues are unlikely to arise; and there is no likelihood
that formal cross-examination will be needed to test the opposing cases.
It is provided in para 10 of Annex 2 that:
the Inspector conducting the hearing will explain
that it will take the form of a discussion which he will lead
and in para 11 of Annex 2 that:
the Inspector will outline what he considers to
be the main issues and indicate those matters for which further explanation or
clarification is required.
Para 12 to Annex 2 provides that: ‘The appellant
will usually be asked to start the discussion …’ and para 13 that:
Those at the hearing will be given the
opportunity to participate. Any questions must be relevant and discussion
should proceed in an orderly manner. The appellant will be allowed to make any
final comments before the discussion is closed.
It is clear that at a hearing there is to be no
formal cross-examination and that a hearing is the suitable procedure where
‘there is no likelihood that formal cross-examination will be needed to test
the opposing cases’. The intention is to make the procedure ‘less daunting for
unrepresented parties’. It is intended to ‘eliminate or reduce the formalities
of the traditional local inquiry’.
Planning permission having been refused,
conflicting propositions and evidence will often be placed before an inspector
on appeal. Whatever procedure is followed, the strength of a case can be
determined only upon an understanding of that case and by testing it with
reference to propositions in the opposing case. At a public local inquiry the
inspector, in performing that task, usually has the benefit of cross-examination
on behalf of the other party. If cross-examination disappears, the need to
examine propositions in that way does not disappear with it. Further, the
statutory right to be heard is nullified unless, in some way, the strength of
what one party says is not only listened to by the tribunal, but is assessed
for its own worth and in relation to opposing contentions.
There is a danger, upon the procedure now followed
by the Secretary of State of observing the right to be heard by holding a
‘hearing’, that the need for such consideration is forgotten. The danger is
that the ‘more relaxed’ atmosphere could lead not to a ‘full and fair’ hearing,
but to a less than thorough examination of the issues. A relaxed hearing is not
necessarily a fair hearing. The hearing must not become so relaxed that the
rigorous examination essential to the determination of difficult questions may
be diluted. The absence of an accusatorial procedure places an inquisitorial
burden upon an inspector.
I have come to the conclusion that the danger that
the required fair hearing did not occur in this case is such that the decision
must be quashed. In the final paragraph of his affidavit, the inspector states
that he ‘respectfully suggests that the applicant is confused as to the relevant
procedure for a hearing of the sort I conducted with a public inquiry in
which, as he deposes, he had previously taken part’. I am prepared to accept
that the remark was directed only to the point the inspector had considered in
his previous paragraph, that is the expected length of the hearing, but if
there is any suggestion that the requirements at a ‘hearing’ are fundamentally
different from those at a ‘public local inquiry’ that suggestion is to be
resisted. A fair and thorough investigation can, in my judgment, be expected by
a party who has the right to be heard, whichever procedure is followed.
I cannot be confident, on a consideration of the
decision letter, that there has been sufficient inquiry into the claimed
agricultural justification. The reference to the absence of an ‘indoor exercise
area’ on the submitted layout plan might be expected to have been followed by a
reference to its presence on the revised layout plan in the business plan, if
that document had been considered. The reference to the absence of dispute
about available floorspace on other English ostrich farms might have been
expected to be accompanied by reference to the applicant’s case that greater
space was in fact required. Findings of ‘considerable doubt as to the firm intentions
of the appellant’, and of insufficient detail about future expansion, read
somewhat oddly in the context of a short hearing with no apparent challenge to
the business plan and no opportunity, by way, for example, of a short
adjournment, to enable Mr Loxam to assist. An inspector minded to make such
findings against a party might be expected to put the doubts to him and give
him an opportunity to deal with them.
I accept, of course, that an appellant must be
expected to tell the inspector all he wishes to tell him and also that the
appellant in this case was mistaken in failing either to supply the business
plan to Mr Loxam in advance or to arrange his earlier attendance. I do however
conclude that the inspector, possibly put off guard by the relaxed informality
of the procedure he was required to follow, did not provide the fair hearing
required by the statute. I add that each case must be determined on its own
merits and plainly there are limits to the inspector’s duty to ask questions.
In reaching the conclusion I have, I am not
encouraging long decision letters. Where a decision is challenged, however, the
court will need to inquire, by reference to the decision letter, whether there
has been a sufficient consideration of the merits of the case put forward by a
party and of any challenge to it. In leading the discussion at the hearing, the
duties of the inspector may be extensive, especially when dealing with an
unrepresented person who, relaxed as he is expected to be, may be diffident
about repeating points, which the inspector says he has read in the documents,
or seeking to challenge or have challenged an assertion made by someone else
around the table. The applicant said that, having been told by the inspector
that he had read the business plan, he did not take the inspector through it.
The attack upon the inspector’s decision before
the judge appears mainly to have involved criticism of the planning judgments
made by the inspector, and the judge was right to underline the difficulties
involved in such a challenge. However, for the reasons given, I would grant
leave to appeal, allow the appeal and quash the decision.
THORPE LJ: I have
had the advantage of reading in draft the judgments of my lords. Although I
agree with their conclusion I am not so firm in upholding the appellant’s
criticisms of the inspector. Although the round-table discussion only lasted
two hours, we were told that it was followed by a two-hour site inspection
during the course of which the appellant had the opportunity to make what
comments and observations he wished. That seems to me a sensible way of
investigating the issues within an informal procedure. Second, I conclude that
the absence of any contribution from Mr Loxam was a deficit of the appellant’s
own making. Third, it appeared to me doubtful whether the document relating to
farming regulations in Denmark had been put before the inspector. Further, it
seems unlikely that this point was taken until well after the inspector swore
his affidavit.
NOURSE LJ: I also
agree.
The first cause of my anxiety about the fairness
of the decision is the terms in which the inspector expressed himself in paras
9 and 11 of the decision letter.
In para 9, he said:
on the basis of what I was told, I am left in
considerable doubt as to the firm intentions of the appellant, and the
direction in which he envisages the business will proceed.
In para 11, he said:
In summary, I am not convinced that the current
scale of operations justified a building of the size proposed, and there is
insufficient detail to make an allowance for any future expansion of the
business.
Those statements lead me to believe that the
inspector did not give the applicant’s business plan the consideration it
deserved. Had he done so, he could not reasonably have expressed the doubts
that he did; nor could he reasonably have said that there was insufficient
detail to make an allowance for any future expansion of the business.
The second cause of my anxiety is that Mr Loxam
was given no opportunity to read the business plan and then to comment on it.
The applicant had made it clear that he wanted the inspector to hear Mr Loxam’s
comments. It is true that when Mr Loxam said that he had not seen the plan the
applicant did not ask for him to be given an opportunity to do so. Nevertheless,
I think that the inspector ought, on his own initiative, to have adjourned the
discussion for that purpose. I agree with Pill LJ that the absence of an
accusatorial procedure places an inquisitorial burden upon an inspector. The
code of practice for hearings states, in para 2, that the procedure is intended
to allow the inspector to lead a discussion about the issues, the aim being to
give everybody a fair hearing and to provide the inspector with all the
information necessary for his decision.
The business plan was directly material to the
likely scale of the business in the future and thus to the size of the building
it required. The
Loxam an opportunity to read it and then to comment on it resulted in the
applicant’s case not being given a fair hearing and in the inspector’s not
being provided with all the information necessary for his decision. For those
reasons, the decision cannot stand.
I am in complete agreement with Pill LJ’s general
observations as to hearings directed by the Secretary of State in lieu of
public local inquiries. I too would grant leave to appeal, allow the appeal and
quash the inspector’s decision.
The appeal was allowed.
