Where an appeal is made to the secretary of state against a refusal or conditional grant of planning permission, the appellant can demand a public inquiry even though the local planning authority may consider that the matter could be resolved by way of written representations, which are more cost effective than instructing witnesses and arranging for representation at an inquiry.
In Waltham Forest London Borough Council v First Secretary of State and Another 3 October 2005, the court considered whether an inspector appointed to determine an appeal based on written representations is under a duty to consider whether an inquiry should be held.
The inspector had been called upon to consider the impact that the opening of a betting office would have upon the vitality and viability of the area in question. He had indicated that he had found the evidence, submitted by way of written representations, to be ambiguous. The claimant argued that on that basis the inspector should have ordered an inquiry, despite the fact that both parties had agreed to the written representations procedure.
The court held that there was no obligation upon the inspector to notify the parties or to order a hearing or inquiry merely because he found the written representations to be unpersuasive or the evidence inconclusive. In the circumstances the inspector had been entitled to reach a decision based upon the material before him and had given adequate reasons for doing so; the decision he had reached was neither irrational nor unfair.
Although Waltham Forest confirms that the procedure adopted for determining the appeal is a matter for the parties concerned, it does suggest that there may be exceptional circumstances when an inspector should order an inquiry. However, it fails to identify what those exceptional circumstances might be. It would have to be borne in mind that, although the benefit of a public hearing is that it affords the parties the opportunity to test each other’s evidence by way of cross-examination, and gives the inspector the opportunity to clarify the evidence before him, on the other hand, allowing the inspector to order a public appeal, with resultant costs not originally envisaged by the parties, could result in an onerous burden, especially for the appellant.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
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Where an appeal is made to the secretary of state against a refusal or conditional grant of planning permission, the appellant can demand a public inquiry even though the local planning authority may consider that the matter could be resolved by way of written representations, which are more cost effective than instructing witnesses and arranging for representation at an inquiry.
In Waltham Forest London Borough Council v First Secretary of State and Another 3 October 2005, the court considered whether an inspector appointed to determine an appeal based on written representations is under a duty to consider whether an inquiry should be held.
The inspector had been called upon to consider the impact that the opening of a betting office would have upon the vitality and viability of the area in question. He had indicated that he had found the evidence, submitted by way of written representations, to be ambiguous. The claimant argued that on that basis the inspector should have ordered an inquiry, despite the fact that both parties had agreed to the written representations procedure.
The court held that there was no obligation upon the inspector to notify the parties or to order a hearing or inquiry merely because he found the written representations to be unpersuasive or the evidence inconclusive. In the circumstances the inspector had been entitled to reach a decision based upon the material before him and had given adequate reasons for doing so; the decision he had reached was neither irrational nor unfair.
Although Waltham Forest confirms that the procedure adopted for determining the appeal is a matter for the parties concerned, it does suggest that there may be exceptional circumstances when an inspector should order an inquiry. However, it fails to identify what those exceptional circumstances might be. It would have to be borne in mind that, although the benefit of a public hearing is that it affords the parties the opportunity to test each other’s evidence by way of cross-examination, and gives the inspector the opportunity to clarify the evidence before him, on the other hand, allowing the inspector to order a public appeal, with resultant costs not originally envisaged by the parties, could result in an onerous burden, especially for the appellant.
Gill Castorina is an associate at
