Rules requiring Secretary of State to refer back to parties on matter of fact — Inspector finding development not detrimental to locality — Secretary of State reaching opposite view — Inspector’s recommendation rejected — Whether matter of fact or opinion — Whether breach of procedural rules — Application to quash Secretary of State’s decision refused
Portsmouth Water plc, the applicant, appealed against a decision by Fareham Borough Council to grant them planning permission for development of a new depot, pumping station and administrative office on the edge of Wallington Village, Fareham, Hampshire. The development was just outside the urban area defined in the local plan. At the public inquiry the inspector considered that the development would not be detrimental to the character of the locality and would be in line with the local plan. He recommended the grant of planning permission. The Secretary of State did not accept the recommendation and reached the opposite view that the development would be a detriment to the locality. The Secretary of State did not go back to the parties to give them an opportunity of making further representations under rule 16(4) of the Town and Country Planning (Inquiries Procedure) Rules 1988 which dealt with procedure after the close of an inquiry. Under rule 16 an inspector is required to report in writing “his conclusions and his recommendations or his reasons for not making any recommendations”. Under para 4, if after the close the inquiry the Secretary of State “differs from the inspector on any matter of fact”, he must notify the interested parties of his disagreement, his reasons for it, and afford them an opportunity of making written representations.
Held The application was dismissed.
1. It was plain that the question whether the development would be “detrimental to the character of the locality” was essentially a matter of opinion or judgment. It did not necessarily follow, however, that something which was a matter of opinion or judgment, might not also involve a “matter of fact” within the meaning and purpose of rule 16(4).
2. In light of the authorities, the question whether the development would be detrimental was a matter of opinion and could not be categorised as a finding of fact. Rule 16(4) made clear the assumption between a matter of fact and a conclusion. That distinction had been drawn in the earlier rules and confirmed by the courts’ decisions between a question of opinion on which the Secretary of State could disagree with his inspector without needing to invite further representations.
3. The freedom of the Secretary to disagree with his inspector on a matter of opinion, without rule 16(4) applying, was not restricted to matters of planning judgment, opinion on planning merits or planning matters. In practice a wide variety of matters could become relevant to a planning decision on which opinion might be needed, eg visual impact or loss or privacy. The correct basis for applying rule 16(4) was to distinguish what was and what was not opinion. That was to be solved on the particular facts by looking at the report and the particular conclusion as a whole: see R v Secretary of State, ex parte Gosport Borough Council (1992) JPL 476.
Richard Drabble (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Roger Shawcross (instructed by Glanvilles Damant, of Newort, Isle of Wight) appeared for Portsmouth Water plc; Fareham Borough Council did not appear and were not represented.
