The procedure by which an appeal under section 78 of the Town and Country Planning Act 1990 is determined is a matter for the Secretary of State. In the event that he considers the written representations procedure inappropriate, he can either direct that a hearing takes place before an inspector, or that a public local inquiry is held. Guidance issued by the Planning Inspectorate states: “The hearing is an inquisitorial process led by the Inspector who identifies the issues for discussion based on the evidence submitted and any representations made”. In practice, it is a relaxed and informal procedure when contrasted with a public local inquiry, but the principles of fairness and natural justice apply equally.
In San Vicente v Secretary of State for Communities and Local Government [2012] EWHC 3585, the claimants had sought to challenge under section 288 of the 1990 Act the decision of an inspector on an appeal to grant planning permission for the erection of 100 houses, following a hearing. The main issue for the court to decide at this stage was whether the claimants should be given permission to amend their claim by substituting new grounds. One of the new grounds alleged procedural unfairness in that the claimants had not been notified of the date of the original hearing. It was incumbent upon the claimants, under the rules, to demonstrate that they had a case that was better than merely arguable in this respect.
It became clear to the inspector during the hearing that there had been a failure to notify interested parties. He decided that there should be a further hearing eight weeks later. Confirmation was given in the meantime by the Planning Inspectorate that this would be a re-run of the original. However, evidence before the court suggested that the inspector failed to conduct the second hearing in this way. The claimants contended that, as a result, while those present were given an opportunity to state their views, they had not been allowed to hear the views of others expressed at the earlier hearing which might sway the inspector one way or another.
The court concluded that neither the Planning Inspectorate nor the inspector had really put their minds to considering what was to be the status of the original hearing, or how the apparent injustice caused by the inadvertent exclusion of the objectors was to be remedied. The claimants had more than just an arguable case, and permission to amend would be granted.
John Martin
