Section 319A of the Town and Country Planning Act 1990 gives the secretary of state a complete discretion to decide whether a planning appeal should be dealt with: (i) at a local inquiry; (ii) at a hearing; or (iii) on the basis of representations in writing. The provisions also allow him to vary his decision at any time before the appeal is concluded. (In practice, the decision will usually be taken on behalf of the secretary of state by the Planning Inspectorate.) Each of the three procedures is governed by a set of regulations made by the secretary of state.
In Ashley v Secretary of State for Communities and Local Government [2011] 14 EG 94 (CS), an inspector allowed an appeal – conducted on the basis of written representations – against the refusal of the local planning authority (LPA) to grant planning permission for a residential development on grounds that included noise disturbance from vehicles. The developer’s representations were accompanied by a noise consultant’s report, which the LPA did not seek to challenge. The claimant, a local resident who had objected to the planning application, applied, under section 288 of the 1990 Act, to quash the inspector’s decision. His principal contention was that there had been procedural unfairness; the inspector should have reviewed the procedure for determining the appeal in the light of the noise report. The secretary of state argued that section 288 did not permit a challenge to a decision under section 319A.
The court held that this was not such a challenge, but, rather, a challenge to the inspector’s decision to allow the appeal. Accordingly, section 288 applied. Furthermore, it was not sufficient that an appeal is conducted in accordance with the relevant regulations. An obligation of administrative fairness and natural justice also applied; it applied with equal force whichever procedure was used.
In the present case, however, natural justice had not been breached. The secretary of state had been entitled to decide that the appeal should be conducted by written representations, given that the developer had indicated that this was appropriate and the LPA had not advanced a contrary view. The appeal documents would have been available for inspection on the LPA’s files. It was unrealistic to assume, in the circumstances, that the LPA was likely to submit further materials in respect of noise disturbance. It had been open to the claimant to make representations to the LPA. The claim was therefore dismissed.
John Martin is a freelance writer
