Outline planning permission – Inquiry – Inspector dismissing appeal against refusal of planning permission relying on new issues not identified prior to hearing – Claimant applying to quash decision – Whether inspector breaching rules of natural justice – Application granted
The claimant applied for outline planning permission in respect of a residential development of land in Wincanton adjacent to the local cottage hospital. The application was refused by the second defendant local authority and the claimant appealed to the first defendant secretary of state. An inspector was appointed and a local enquiry was to be held. The inquiry was governed by the Town and Country Planning Appeals Rules 2000, rule 7 of which provided that an inspector might, within 12 weeks of the starting date of the inquiry, send to the parties a written statement of the matters about which he particularly wished to be informed for the purposes of his consideration of the appeal.
Prior to the inquiry, the claimant and the second defendants agreed that only two grounds of complaint remained live, ie whether the existing plans for the area over the next five years contained sufficient potential houses and, if they did not, whether the national planning policy framework was then arguable applicable. There were also considerations relating to traffic movements through the hospital grounds and the potential effects of such traffic on highway safety.
Following the inquiry, the inspector dismissed the claimant’s appeal concluding, amongst other things, that the development had substantial environmental and social dis-benefits, such as the harm to the character and appearance of the area and that the site was not in a particularly sustainable location.
The claimant brought an application under section 288 of the Town and Country Planning Act 1990 seeking to quash that decision. Its main ground of challenge was that there had been a breach of the rules of natural justice since the inspector had based her decision on new issued not previously properly adumbrated, namely, the effect of the proposal on the character and appearance of the area and whether the site was in a sustainable location, without giving the parties a fair opportunity to address those issues.
Held: The application was granted.
When deciding whether the parties at an inquiry had had a fair opportunity to comment on an issue raised by an inspector of his or her own motion and whether they could reasonably have anticipated that an issue had to be addressed because it might be raised by an inspector, it was important to bear in mind the highly focused nature of the modern public inquiry where the whole emphasis of the CPR and procedural guidance contained in circulars was to encourage the parties to focus their evidence and submissions on those matters that were in dispute. If a party to an inquiry reasonably believed that a matter which was in dispute had been dealt with by way of agreement in a statement of common ground, it might well be unfair to allow the apparently agreed issue to be reopened without giving the party a proper opportunity to address it, if necessary by calling appropriate expert evidence: R (on the application of Poole v Secretary of State for Communities and Local Government [2008] EWHC 676 (Admin) applied.
On the face of it, the failure of the inspector in the present case to indicate whether before, during or after the hearing that she was minded to rely upon fresh grounds constituted a breach of a basic natural justice requirement, namely that a party should have a reasonable opportunity of addressing the issues which were going to be determinative of a judicial proceeding. A party should have a reasonable opportunity of meeting and dealing with the case against him: Castleford Homes Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 77 (Admin); [2001] PLSCS 30; [2001] EGCS 16, Tatham Homes Ltd v First Secretary of State [2005] EWHC 3538 (Admin); [2005] PLSCS 112 and R (on the application of Gates Hydraulics) v Secretary of State for Communities and Local Government [2009] EWHC 2187 (Admin) considered.
In view of what had been agreed between the principal parties, it was wrong for the inspector to raise and take into account the effect of the proposal on the character and appearance of the area and whether the site was in a sustainable location. No other evidence filed in the case really raised in any substantial way those issues and, given the agreement that had been arrived at, the applicants should not properly be regarded as being in some way on notice that character, appearance and sustainability were in issue such that they should have produced evidence about it. Therefore, the failure of the inspector to notify the parties that those were significant issues as far as she was concerned and her failure to give in particular the applicants the opportunity of dealing with the points, amounted to a failure to allow the applicants a fair crack at the whip. Accordingly her decision would be quashed.
Eileen O’Grady, barrister
