Town and country planning–The applicant company, having been refused planning permission by planning authority to use land as a car park, requested copies of documents, such as letters and plans, for the purpose of the public inquiry following an appeal to Secretary of State–Authority refused to provide documents, but, possibly on counsel’s advice, handed a bundle of them to the company’s managing director at opening of inquiry–Request for adjournment to study documents rejected except for an extension of luncheon break–Inspector’s refusal of substantial adjournment a failure to comply with rule 10 (5) of Town and Country Planning (Inquiries Procedure) Rules 1974 and also a breach of rules of natural justice–Secretary of State’s decision dismissing appeal quashed.
In this case
the applicant company, Performance Cars Ltd, applied under section 245 of the
Town and Country Planning Act 1971 to quash the decision of the Secretary of
State upholding the refusal of planning permission for the use of land near
Layton Road, Brentford, as a car park. The application was
of the Queen’s Bench Division ((1976) 240 EG 51, [1976] 2 EGLR 141), whereupon
the applicant company appealed to the Court of Appeal. The relevant facts are
fully stated in the judgment of Lord Denning MR.
N Primost
(instructed by Loxdales) appeared on behalf of the appellants; Harry Woolf
(instructed by the Treasury Solicitor) represented the respondent.
Giving
judgment, LORD DENNING MR said: Not far from the Great West Road in Brentford
there was in the old days a set of railway sidings. They ran parallel to a road
called Layton Road. They covered a site of two acres. In 1970 they ceased to be
used: afterwards the two acres of land were bought by the council, the London
Borough of Hounslow. They let it to a firm called Performance Cars Ltd. It was
on a lease which was determinable by six months’ notice. The terms of the lease
were that Performance Cars were to be able to use it as a car park, storage of
contractors’ plant, for machinery and parking vehicles. For a time Performance
Cars used the land contrary to the lease for dismantling cars, but, on
complaints being made, they stopped so using it. In February 1972 they made an
application for planning permission to park cars and lorries there, but the
local authority refused on the ground that ‘the general activities, including
noise, associated with the present use of the site, are considered detrimental
to the amenities of nearby residential properties.’ The local council sent round a circular to
the people who lived near this site. These lodged a petition against the use of
it as a lorry park. It was signed by 77 of the local residents, mostly people
from Layton Road. It asked for ‘the removal of the lorry park which is causing
loss of sleep and is generally disturbing the peace at all times of the day and
night.’
The planning
request was refused. There was an appeal to the minister. He sent an inspector
down to hold an inquiry. Much of the neighbouring property is used as an
industrial area with factories and builders’ yards. But Layton Road is an
exception. It is a residential road with terraced houses built about 18 years
ago.
In order to
prepare his case for the inquiry, the managing director of Performance Cars,
acting in person, wrote to the local council and he sent a copy of his letter
to the Department of Environment on July 26 1974. It said: ‘With reference to
the appeal hearing on September 10 1974 . . . we would be obliged if you
expedited the delivery of all documents and statements’ wanted to prepare the
case. He asked for: ‘(1) Photostat copies of all letters and details of an
alleged petition from 77 people of Layton Road as mentioned in the ‘Evening
Mail’ on Monday October 9 1972, and (2) copies of applications, plans and
approvals, letters and circulars, including objections, in respect of a petrol
station now undergoing completion in Layton Road,’ and other documents. He did
not get a reply at that time. On August 21 1974 he wrote again.
Eventually on
August 22 1974 the borough council by their solicitor’s department replied:
‘The planning officer has sent me copies of your letters. In my opinion the
council is not required to supply you with the information and documents you
requested and accordingly I regret that I am unable to accede to your
wishes.’ So there it was. On August 22
1974 the solicitor’s department of the borough refused him the documents he
wanted in order to prepare his case. The judge said: ‘I feel that the council’s
failure to respond to that request is to be deplored.’
The inquiry
came on on September 10 1974. This time the borough council were represented by
counsel. The company was represented by Mr Goldsmith in person. I expect that
counsel told the council that they were wrong in refusing to let Mr Goldsmith
see the documents. The position was governed by Rule 6, sub-rule (4) of the
Town and Country Planning (Inquiries Procedure) Rules 1974 which govern these
inquiries and which says:
Where the
local planning authority intend to refer to, or put in evidence, at the inquiry
documents (including maps and plans), the authority’s statement shall be
accompanied by a list of such documents, together with a notice stating the
times and place at which the documents may be inspected by the applicant and
the section 29 parties; and the local planning authority shall afford them a
reasonable opportunity to inspect and, where practicable, to take copies of the
documents.
It is quite
plain that if local authorities intend to put documents in evidence, they
should let the other party see them beforehand, and the council did not fulfil
the terms of that rule. When the case was coming on for hearing, counsel probably
said: ‘You had better let Mr Goldsmith see them.’
So at the
beginning of the inquiry on September 10 1974 Mr Goldsmith was handed this
bundle of documents. Whereupon he said: ‘I would like an adjournment to deal
with this.’ He said that these documents
had not been provided; he had not had time to study them in detail; it was not
possible for him to prepare his case; and he wanted 30 days’ adjournment. The
inspector was in a very difficult position. He and everybody else had given a
day up for the case. He said: ‘You may have an extended lunch hour and you can
study them during the lunch hour.’ There
was an adjournment of an hour and 40 minutes over the lunch break. During that
time Mr Goldsmith no doubt read the documents. In the afternoon Mr Goldsmith
made some quite sensible comments on those letters. He did the best he could.
He did not make any further application for an adjournment because he thought
that that had been ruled upon. So it had.
After the
inquiry was concluded the inspector had a view. He made his report on September
30. In his findings of fact the inspector said ‘there is an urgent need for a
lorry park in the Brentford area and none is at present available’. He also
said: ‘Present usage involves about 8 to 10 movements of lorries to or from the
appeal site in 24 hours.’ In his
conclusions the inspector said: ‘I consider that the continued use of the
appeal site as a lorry park on the present scale would be detrimental to the
well-being of the occupants of the dwellings in Layton Road, particularly in
the eastern half. An intensification of this use would be likely to follow from
the granting of planning permission and this would be intolerable for local
residents. I consider that these objections outweigh the need, urgent and important
as it is, for a lorry park in this area.’
So there it was. The inspector thought, if permission were granted, the
noise would become much worse and would become intolerable.
The minister
upheld that decision. Now the company apply to this court to set the decision
aside. Mr Goldsmith appeals under section 245 of the Town and Country Planning
Act 1971 on the ground that his interests have been substantially prejudiced by
a failure to comply with any of the relevant requirements in relation to that
Act. Alternatively, he appeals on the ground that there has been failure of
natural justice.
Under the Town
and Country Planning (Inquiries Procedure) Rules, rule 10, sub-rule (5), says
that the inspector may allow documents in evidence if they have not been disclosed
to the applicant previously, but he shall if necessary during the inquiry give
the applicant or the local planning authority, as the case may be, ‘an adequate
opportunity of considering any such fresh submission or document.’
The whole
question really comes down to this: did the inspector give Mr Goldsmith an
adequate opportunity of considering these new documents? I think the inspector was put in a very
difficult position. The local authority had, however, made a bad mistake in not
disclosing the documents previously as they should have done. In view of the
mistake I think that the inspector should have given Mr Goldsmith more
opportunity of considering them and dealing with them. I can understand Mr
Goldsmith saying: ‘If I had been able to have these documents before, I could
have dealt with them. I asked for them by letter both to the council and to the
ministry, but I did not have them.’ In
those circumstances he would go away with a sense of injustice. He had asked
for those documents expressly a long time before the hearing. He was not given
them. He then had them given to him at the last moment. It seems to me in those
circumstances that he would
feeling, I think, which in all our proceedings we should try to avoid. People
should not go away from any inquiry feeling ‘I’ve not had a fair deal.’ It is for this reason that I feel we must,
although one regrets it, let the order go and set the matter aside.
This point is
similar to the point Browne LJ had in the case of Hibernian Property Co Ltd
v Secretary of State for the Environment (1973) 27 P & CR 197. He
said: ‘When the inspector gave way to this temptation I have no doubt at all
that she was acting from the highest motives . . . I am not satisfied that in
fact the result would have been different if the questions had not been asked.
In view, however, of the authorities to which I have referred and of the vital
importance of ensuring the strictest observance of the rules’–he set aside the
decision.
In this case I
feel the same way as Browne L J did in that case. I think that we ought to
allow this appeal and set aside the order.
Agreeing,
BROWNE L J said: It is now accepted by Mr Woolf, and it is clearly right, that
the local planning authority was wrong in its refusal to produce these
documents at an earlier stage. It was, in my judgment, clearly a breach of rule
6, sub-rule (4) of the Town and Country Planning (Inquiries Procedure) Rules
1974. It may well also have been a denial of natural justice. But I agree with
Mr Woolf in the construction which he puts on section 245 (4) (b) of the Town
and Country Planning Act 1971, which says: ‘ . . . if satisfied that the order
or action in question is not within the powers of this Act, or that the
interests of the applicant have been substantially prejudiced by a failure to
comply with any of the relevant requirements in relation thereto, may quash
that order or action.’ The present case
relates to an ‘action’ as defined by section 242 (3) (b), that is ‘. . . any
decision of the Secretary of State on an appeal under section 36 of this
Act.’ I agree with Mr Woolf that the
‘action in question’ referred to in section 245 (4) (b) is the decision on the
appeal. Equally, I agree that the word ‘thereto’ refers back to the decision on
the appeal. Accordingly, there is apparently no direct sanction, at any rate
under that subsection, for a previous failure by a local planning authority to
comply with the rules.
But there is a
sanction in fact because the position seems to me to be this. The council,
having wrongly refused to produce these documents, the matter then comes before
the inspector and is covered by rule 10 of the rules. The question here is how
the inspector dealt with the situation with which he was presented on September
10 when the inquiry opened, by reason of the previous failure of the local
planning authority to do what they should have done. If the inspector unfortunately
got it wrong, the Secretary of State of course is responsible, because the
inspector is simply representing him.
The case
therefore, I think, comes down to the question whether, in view of the local
planning authority’s failure to produce the documents until the morning of the
hearing, the inspector’s refusal to adjourn the case was either a denial of
natural justice or a breach of rule 10, sub-rule (5), or both. I am myself very
doubtful indeed whether in fact the letters and the petition made any difference
to the recommendation of the inspector or the decision of the Secretary of the
State. I am also very doubtful whether, even if the applicant had had an
adjournment, he could have got any useful rebutting evidence. But, when the
letters and the petition were produced at the beginning of the hearing, it
should, I think, have been plain to the inspector that they might be
relevant. It seems to me also that it should have been clear to the inspector
that the applicant might be able to get some rebutting evidence.
It is not
clear on the information before us whether the inspector read the letters and
the petition before making his decision only to grant an adjournment by giving
a longer luncheon hour. If he did read the letters, he should have realised
that they might be relevant and that the applicant might be able to get
rebutting evidence and that it would only be fair to give him the chance of
doing so. If he did not read them before giving the decision, his decision was
clearly wrong. I agree that the inspector was put in an extremely difficult
position, and I think my Lord has already made it clear that we make absolutely
no criticism from a moral point of view of the conduct of the inspector. I am
quite satisfied that he did what he thought was right in all the circumstances.
But, in my judgment, that being the position, there was a breach of natural
justice by reason of the decision to refuse any substantial adjournment and to
go on with the hearing before the applicant had had any substantial chance of
considering the documents. It also follows, I think, that the inspector did not
give the adequate opportunity for consideration which he is required to do
under rule 10, sub-rule (5) of the Inquiries Procedure Rules.
As I have
said, I have strong doubts whether the refusal of the adjournment really made
any difference; but, having decided that there was in my judgment a breach of
natural justice, I do not think my doubts matter. I hesitate to refer to a
previous judgment of my own–I am not going to read it–but in the Hibernian
Property Co case (1973) 27 P & CR 197 I dealt with this matter at pp
212 to 213, and said that I thought the question was not whether the evidence
which had been, as I held, obtained contrary to the requirements of natural
justice had in fact prejudiced the applicant’s case, but whether there was a risk
that it had prejudiced the applicant’s case. I quoted the decision of the
Judicial Committee of the Privy Council in which the opinion was delivered by
my Lord in the case of Kanda v Government of Malaya (1962) AC 322
and I went on to say that it was obviously impossible for the court to
investigate what weight the various relevant factors had had in inducing the
Secretary of State to make the decision he did, but that there was clearly a
risk that the evidence which I held to be wrongly obtained might have
influenced his decision.
In view of my
doubts to which I have already referred, I am reluctant to quash this decision,
but my Lord has already quoted what I said at the end of the Hibernian
case, and I will not repeat it. It seems to me, for the reasons I there gave,
that the importance of maintaining the observance of the rules which the courts
have laid down in the interests of natural justice outweighs any other
consideration, and I agree that we should quash this decision.
Also agreeing,
SIR JOHN PENNYCUICK said: The local authority was admittedly at fault in not
giving Mr Goldsmith an inspection of the letters before the opening of the
inquiry. Once this is accepted, it seems to me to follow that the inspector
ought to have allowed an immediate adjournment at least sufficient to enable Mr
Goldsmith to read the letters and consider his position. I do not think that it
was right for him merely to extend the luncheon adjournment by 40 minutes in
order that Mr Goldsmith might consider the letters then and, meanwhile, direct
him to open his case and call his evidence before considering the letters. I
think this was a breach of natural justice which invalidates the recommendation
of the inspector and the decision of the Secretary of State based upon that
recommendation.
A parallel
position would arise in a civil action if the defendant failed to produce at
the opening of the trial particulars which he had been bound to produce at an
earlier stage and if the plaintiff then applied for an adjournment.
It seems to me
that Mr Goldsmith might have renewed his application for an adjournment–that is
to say, an adjournment of some days at least–after considering the letters. No
doubt it was difficult for him, especially as he appeared in person, to do that
in the existing circumstances. The fact remains that he did not make any
further application for an adjournment and, for myself, I rather doubt whether
there could be said to have been a failure of natural justice by reason of the
omission of the inspector to grant a further adjournment on his own initiative.
The initial
and serious fault in these proceedings was of course that of the local
authority, and I have every sympathy with the inspector who had to make this
difficult procedural decision and was in no other respect at fault. I think,
nonetheless, that the inspector was at fault in the course which he took over
the
strictly complied with, and I think it would be right to quash this decision.
The
application was granted and the decision of the Secretary of State quashed. The
appellant company was awarded costs before the Court of Appeal and below.
