Town and country planning – Planning appeal – Procedural fairness – Proposed residential development to include construction of pedestrian footway – Statements of common ground between respondent developer and local planning and highway authorities indicating that highway safety not in issue – Appellant’s inspector refusing planning permission on road safety grounds raised by local residents – Whether appellant given sufficient opportunity to deal with that issue – Appeal dismissed
A planning inspector appointed by the appellant secretary of state determined an appeal by the respondent against a decision of the local council refusing outline planning permission for a proposed development 110 dwellings on land near Lower Shiplake in Oxfordshire. The appeal was determined by way of a public inquiry.
Various local residents submitted representations to the inspector objecting to the development on road safety grounds. They expressed concern about the proposed main pedestrian route from the development to the village of Lower Shiplake, which involved the construction of a footway which crossed the main A4155 road at a traffic island at the junction with another road, at a point where the A4155 bent to the west. A road safety audit commissioned by the respondent had recommended that speed checks be carried out to ensure that the visibility splay at the pedestrian crossing was adequate for the vehicle approach speeds along the A14155. However, in the event no such checks had been carried out.
Statements of common ground prepared pursuant to to r 15 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 recorded agreement between the respondent and the council, and between the respondent and the highway authority, that highway safety was not an issue between them.
However, a pre-inquiry statement issued by the inspector under r 7 identified, as one of the main issues, the safety and convenience of users of the highway and other public rights of way, noting that representations had been received from interested parties on that point. Ultimately, the inspector refused planning permission on road safety grounds.
The respondent brought a claim, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision on the ground that it was procedurally unfair. She argued that: (i) she had not been adequately alerted to the fact that highway safety at a proposed pedestrian crossing was in issue; and (ii) the inspector should have considered whether any concerns could have been met by the imposition of a Grampian condition attached to a planning permission prohibiting the development unless and until adequate measures had been agreed to preserve highway safety.
Those arguments were accepted in the court below and the respondent’s claim was allowed accordingly: see [2015] EWHC 3541 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The mere fact that some aspect of the proposed development was not in issue between the developer and the local planning authority did not preclude the inspector from considering that aspect and giving decisive weight to it, if it was raised by a third party: R (on the application of Tatham Homes Ltd) v First Secretary of State [2005] EWHC 3538 (Admin) applied. A developer could not ignore the views of local residents, even if they were not supported, or were contradicted, by the local planning authority. To hold otherwise would undermine the value of public participation in environmental decision-making. If a third party raised an issue which was at variance with the agreed stance of the developer and the local planning authority, the inspector was duty bound to consider it. Whether there had been procedural unfairness to the developer depended on whether, on the facts of the case, the appellant or her team ought reasonably to have been aware of the significance of the question of road safety and in particular the safety of the pedestrian crossing.
(2) In the instant case, the highway authority and the local planning authority were content with the principle of the crossing proposed at the traffic site but wished to control the detailed design or specification of the link having regard to matters raised in the safety audit. The two authorities had approved the footway route in principle, with the details to be worked out later, under a condition to be satisfied when seeking approval of reserved matters. However, the fact that the inspector flagged road safety as a main issue meant that there was every possibility that the inspector would depart from the statement of common ground in some respect. Against the background of the representations of local residents which, for the most part, emphasised the difficulty for pedestrians in crossing the road at the traffic island, pedestrian safety in crossing the road should have been seen as a significant possibility. Moreover, the specific points that concerned the inspector were raised at the inquiry itself.
(3) It made no difference that the concerns raised by local residents were of a general nature. There was a consensus among the local residents of the danger of the road, and the difficulties that pedestrians would have in crossing it at the proposed location. It was unrealistic to expect local residents who might be keenly interested in a development to deal with technical detail, such as the size of visibility splays. While it might not be incumbent on an appellant to deal with every representation, a developer would take a risk by failing to do so in the face of a clear consensus of opinion from local residents, especially where, as here, the inspector had said that road safety was a main issue. Bad or indifferent points raised by the local residents would have been filtered out by the inspector’s own description of what he or she perceived to be the main issues which just left the points that were potentially good ones.
Accordingly, on the particular facts of the case, there was no procedural unfairness since the question of highway safety and, in particular, the safety of the pedestrian crossing had been sufficiently raised both before and at the inquiry both by local residents and by the inspector himself.
(4) Although the appellant succeeded on the procedural fairness ground, the inspector’s decision should still be quashed on the ground that he had not considered the imposition of a Grampian condition to deal with the road safety issues. That issue was not included in the appellant’s grounds of appeal. In any event, the imposition of conditions was inherent in the statement of common ground between the respondent and the highway authority, and a Grampian condition was specifically mentioned in the highway authority’s consultation response. Had the appellant made it clear that he was appealing against the judge’s order on that ground too, the respondent would no doubt have served a respondent’s notice seeking to uphold the judgment on that point.
Richard Kimblin QC (instructed by the Government Legal Department) appeared for the appellant; Christopher Lockhart-Mummery QC (instructed by Harvey Jaskel Solicitors) appeared for the respondent.
Sally Dobson, barrister
