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 (a) at a local inquiry (b) at a hearing or (c) 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. However, the courts have made it clear that it is not sufficient that an appeal is simply conducted in accordance with the relevant regulations. An obligation of administrative fairness and natural justice also applies, and it applies with equal force whichever procedure is chosen.
In Ashley v Secretary of State for Communities and Local Government [2012] PLSCS 78 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 entering and leaving the car park forming part of the development. The developer’s representations were accompanied by a noise consultant’s report, produced on the last day of the period for representations, which the LPA did not seek to challenge. The appellant, a local resident who had objected to the planning application, applied unsuccessfully 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 planning appeal in light of the noise report. The appellant appealed.
The Court of Appeal held that the planning appeal hearing had been unfair, and in breach of natural justice, and accordingly quashed the inspector’s decision. It was not incumbent on the appellant to visit the offices of the LPA on that last day to inspect any evidence submitted at a late stage. He had not been given the opportunity to respond to which he was entitled. The written representations procedure had been adopted, because no expert evidence was expected. General procedural guidance indicated that it was appropriate to hold a local inquiry where it was necessary to test evidence, and where there were expert witnesses.
John Martin is a freelance writer
