An inspector determining a planning appeal has a duty to ensure that any party that has a right to be heard is given a full and fair hearing. This is so whether the appeal is dealt with by means of a public local inquiry or an informal hearing. In particular, a party must not be deprived of the opportunity to present material by an approach of the inspector that he or she did not anticipate and could not reasonably have anticipated. To use an expression that has gained judicial acceptance, each party is entitled to “a fair crack of the whip”.
In Barnsley Metropolitan Borough Council v Secretary of State for Communities and Local Government [2010] EWHC 206 (Admin), an inspector had, following a hearing, upheld an appeal against a refusal by the council to grant planning permission for a change of use of land in the green belt (the appeal site) to provide eight static caravan pitches for gypsy and traveller occupation a permanent basis. The applicant Romany gypsy and his family had been occupying a privately owned gypsy site (the existing site) also in the green belt that had suffered severe flooding and remained at risk. Because of the serious effect of this on his family, he was concerned to move them to the appeal site.
The inspector found that the proposals amounted to inappropriate development in the green belt, but concluded that very special circumstances outweighed this. In particular, he referred to the personal and family circumstances of the applicant, the significant and unmet need for sites for gypsies and travellers in the area and the likelihood that such needs would not be met in the immediate future. However, he included the potential of returning at least part of the existing site to a more appropriate green belt use.
The council, as one ground in a section 288 appeal, contended that it had been denied “a fair crack of the whip”. The applicant had not raised issues relating to the existing site at the hearing and so it had been given no opportunity of addressing them.
The court dismissed the appeal, holding that the council had not suffered any unfairness. The inspector, in his decision letter, had anticipated the points that the council might have been expected to raise and had recognised them. Furthermore, his accompanied inspection took account of both the existing site and the appeal site. Inevitably, a comparison would be made.
John Martin is a freelance writer
