Claimant appealing refusal of planning permission – First inspector recommending that appeal be allowed – Secretary of State requesting environmental impact statement and reopening inquiry – Second inspector recommending that appeal be refused – Secretary of State agreeing with second inspector – Whether second inspector went beyond remit in assessing environmental issues at reopened inquiry – Claim dismissed
The claimant applied to the second defendant council for outline planning permission to develop agricultural land for housing. Following the council’s refusal of permission, the appellant appealed to the first defendant Secretary of State. The appeal site was close to a site of special scientific interest (the conservation site) and, at that time, there was a proposal to designate the conservation site as a special protection area for wild birds (SPA). An important issue at the appeal was whether, and to what extent, the proposed development would adversely affect the conservation site. In his report, the inspector recommended that the appeal be allowed, but the Secretary of State concluded that he needed to consider an environmental impact assessment before reaching a decision on the appeal.
An assessment was prepared, in response to which the Secretary of State concluded that the inquiry should be reopened to consider representations on the environmental assessment. Notice of this decision was issued stating that the inquiry would “consider the information contained in the environmental impact assessment and any material change in circumstances since the previous inquiry”. The reopened inquiry was conducted by a second inspector, who concluded that permission should not be granted. In his decision letter, the Secretary of State considered both reports, agreed with the second inspector’s recommendations and dismissed the appeal.
The claimant appealed pursuant to section 288 of the Town and Country Planning Act 1990, contending that the basis upon which the inquiry was reopened precluded the second inspector from reopening the evidence and reporting upon environmental issues, save to the extent of considering, by reference to the first inspector’s report, whether there was anything set out in the assessment that materially differed from the evidence presented to the first inspector, or any new matters raised by it, or anything that contradicted the conclusions on environmental issues reached by the first inspector. It submitted that there had been no material changes and that, therefore, it was not open to the second inspector to make a fresh assessment of environmental issues. Relying upon North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113, the claimant also submitted that two earlier decisions, relating to the same appeal site and development, were a material consideration and that Secretary of State was required to give reasons if he proposed not to follow them.
Held: The appeal was dismissed.
If the claimant’s restricted approach to the second inspector’s remit was correct, it was difficult to see how any useful examination of environmental issues would have been possible at the reopened inquiry. The terms of reference for the reopened inquiry drew a clear distinction between the environmental issues and those matters that only became relevant if there had been a material change in circumstances since the earlier hearing. On a commonsense reading of the reference to the environmental assessment, it was clear that environmental issues were to be considered in the light of that assessment.
The approach to the conservation issue in the two earlier appeal decisions differed from the approach required in the case of an SPA. Accordingly, they were distinguishable and not material to the Secretary of State’s decision. Applying Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37, it was clear from the Secretary of State’s decision letter what he had decided and why he had done so. The letter could not be faulted for lack of reasoning.
David Elvin (instructed by Gouldens) appeared for the claimant; Timothy Corner (instructed by the Treasury Solicitor) appeared for the first defendant; Christopher Katkowski QC (instructed by the solicitor to Hart District Council) appeared for the second defendants.
Sarah Addenbrooke
