Local plan review — Public inquiry — Procedural unfairness — Claimant objecting to plan preventing development of its land — Claimant erroneously believing defendants raising no issue as to drainage problems of development — Claimant submitting drainage evidence late upon discovering error — Whether inspector breaching natural justice in excluding claimant’s evidence without considering it — Claim allowed
The claimant owned land that adjoined the South Downs area of outstanding natural beauty. It had built housing on part of the land and wanted to develop the remainder. The defendant council conducted a local plan review in which they designated the claimant’s land in a way that made development impossible. Instead, another site owned by a third party was allocated for housing. The claimant submitted objections to the designation of its land. Counter-representations were submitted by interested parties, raising issues of flooding and drainage with regard to the development of the claimant’s land. Following discussions with the defendants, the claimant believed that there was no longer any objection in principle on drainage grounds and that the issue could be resolved by an appropriate scheme.
Consequently, the evidence submitted by the claimant, for the purpose of the public inquiry into the plan, focused on the claimed landscaping advantages of its land. However, it had misunderstood the defendants’ position: the latter considered there to be unresolved issues relating to drainage and they filed evidence to that effect. In response, the claimant obtained an expert’s report that purported to answer all the defendants’ concerns over drainage. That report was completed the day before the hearing date and was submitted the following morning. The defendants objected to the admission of the report. Without reading it, the inspector declined to admit the report in evidence. Consideration of the drainage issue overran and took several days. The inspector recommended that the plan should be adopted with the designation of the claimant’s land intact. The defendants accepted that recommendation.
The claimant brought proceedings, under section 287 of the Town and Country Planning Act 1990, to quash the relevant parts of the plan. It contended that the inspector’s refusal to admit its expert report had breached the rules of natural justice and Article 6 of the European Convention on Human Rights by denying the claimant an adequate opportunity to put its case in respect of its objections to the plan.
Held: The claim was allowed.
Although lateness and non-compliance with directions for service of evidence by a particular date were relevant factors for the inspector to bear in mind, he was required to exercise his discretion as to whether to extend time, bearing in mind the reason for the lateness and the importance of the evidence to the determinative issues. It must have been clear to him that the evidence in the claimant’s expert report went to one of the two determinative issues, namely drainage. In exercising his discretion, he should have considered the strength of that evidence, but he had been unable to do so because he had not looked at the report before deciding not to admit it. If, as the claimant submitted, the report entirely answered the defendants’ concerns over drainage, it was difficult to see how he could properly have refused to admit evidence that was conclusive on a vital issue before him.
Further, without reading the report, the inspector could not reach a view as to how long it might take the defendants to consider the evidence and then to respond. Given the importance of the evidence, in properly exercising the inspector discretion he was bound to consider ways in which it might be admitted without unreasonable disruption to the inquiry timetable. Moreover, when it became apparent that the issue would overrun, he should have reviewed his decision not to admit the evidence. Given the length of the overall hearing, he should have considered more carefully the possibility of rearranging the inquiry timetable to allow the defendants to consider the evidence, with an appropriate adjournment if necessary.
Accordingly, the inspector had failed properly to exercise his discretion and had substantially prejudiced the claimant’s ability to present its case on the objections so far as a vital issue was concerned. The procedure as a whole had been unfair to the claimant, and the decision should accordingly be quashed.
Suzanne Ornsby and Jeremy Pike (instructed by Sharpe Pritchard) appeared for the claimant; Peter Towler (instructed by the legal department of Weymouth and Portland Borough Council) appeared for the defendants.
Sally Dobson, barrister
