The claimant’s related ground of challenge in Westerleigh Group Ltd v Secretary of State for Communities and Local Government (see PP 2015/2) was that the inspector erred in law generally in determining the planning appeal by means of the written representations procedure. Section 319A(1) of the Town and Country Planning Act 1990 (“the Act”) empowers, and obliges, the secretary of state to determine the procedure for dealing with various appeals and applications, including planning appeals made under section 78 of the Act. Section 319A(4) enables any such determination to be varied by a subsequent determination made at any time before the appeal is decided. In practice, all determinations are actually made by PINS, acting on his behalf.
Guidance presently contained in Procedural Guide: Planning Appeals – England published on 1 April 2014 states that the appellant, when making its appeal, should identify which of the three procedures it considers to be the most appropriate, and give reasons in support. The views of the local planning authority (“LPA”) will also be taken into account. PINS, on making the determination, is to give reasons where the procedure differs from that requested by the appellant or the LPA. Even more important are the criteria for determining the procedure. These are set out in Annexe K to the document.
In Westerleigh, while both the appellant and the LPA requested the written representations procedure, there was considerable public pressure for an inquiry to be held. Those writing to PINS, in that respect, included the parish council and the local MP. The claimant, through its solicitors, did likewise. Nevertheless, PINS did not vary the original determination.
Before the court, the claimant argued first, that the inspector and/or PINS failed to follow the published guidance and second, that if account was taken its application – initially by PINS and later by the inspector – the determination was unreasonable and/or irrational. More specifically, the claimant contended that the appeal generated sufficient local interest to justify an inquiry and, separately, that the planning issues raised were complex, so requiring evidence relating to those issues to be tested by formal questioning.
The court dismissed the claim, concluding that it was inconceivable that the inspector failed to consider the published criteria before determining that the appeal should be dealt with by means of written representations. Likewise, neither PINS nor the inspector had been unreasonable or irrational in their application of the criteria. The criteria themselves contain a clear warning to the effect that they must be applied with common sense, and that they cannot be regarded as “fully prescriptive or entirely determinative”.
John Martin is a planning law consultant
