Inquiries in England, following the call- in of a planning application under section 77 of the Town and Country Planning Act 1990 (“the Act”) or an appeal under section 78 of the Act where the Secretary of State has recovered jurisdiction, are governed by the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (“the Rules”) together with the principles of natural justice. Rule 17 of the Rules regulates post inquiry procedure.
Rule 17(1) obliges the inspector, after the close of the inquiry, to make a report to the Secretary of State. This must include his conclusions and his recommendations (or his reasons for not making any recommendations). Rule 17(5) covers two situations: (a) where the Secretary of State differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector, and (b) where the Secretary of State takes into consideration any new evidence or new matter of fact (not being a matter of government policy).
If, in the case of either (a) or (b) the Secretary of State is for that reason disposed to disagree with a recommendation made by the inspector, he must not come to a decision which is at variance with that recommendation without notifying the parties to the inquiry and giving them an opportunity to make written representations to him. In the case of (b) only, on being notified the parties are entitled to insist on the inquiry being reopened.
Fox Land and Property Ltd v Secretary of State for Communities and Local Government [2014] EWHC 15 (Admin) was concerned with a recovered planning appeal, in which the Secretary of State rejected the recommendation of his inspector to grant planning permission for residential development on agricultural land in the green belt. Following the close of the inquiry, the local MP submitted to the Secretary of State information about developing local plan policies, and urged that he refuse planning permission.
One of the grounds of challenge in the High Court contended that the Secretary of State had failed to act in accordance with Rule 17(5), and the principles of natural justice, in that he should have disseminated this information to the parties and asked for their written comments. The court dismissed the challenge, holding that while the Secretary of State had clearly disagreed with the recommendation of his inspector, it was apparent from the decision letter that the representations from the local MP was not his reason for doing so.
John Martin
