The rules of natural justice prevent an inspector from relying on fresh grounds to determine a planning appeal without giving the parties an opportunity to be heard
In addition to the relevant statutory procedural requirements, the rules of fairness and natural justice apply in the determination of planning appeals, whichever method of determination is chosen. “Did the appellant have a fair crack of the whip?” is a question often found on judicial lips. In Hopkins Development Ltd v Secretary of State for Communities and Local Government [2013] EWHC 1783 (Admin) the court concluded that it had not.
There, the local planning authority (“LPA”) had refused planning permission for a residential development on six grounds. The claimant appealed, and an inquiry took place. The claimant and the LPA, in a statement of common ground, agreed that only two of those grounds remained live, and that was the basis on which each conducted its case. However, having dealt with those two grounds, the inspector in her decision letter went on to rely upon additional grounds. The claimant successfully challenged her decision in the High Court, contending that there had been a breach of the rules of natural justice.
The case demonstrates the particular principles involved. (1) The parties to an inquiry must have a reasonable opportunity of addressing the issues that may be determinative of the outcome. (2) These may or may not be raised by the inspector of his own volition. (3) It may be necessary to ask whether the parties could reasonably have anticipated that such issues had to be addressed. (4) If a party reasonably believes that a matter, which was in dispute, has been dealt with by way of agreement in a statement of common ground, it may be unfair to allow the issue to be reopened without that party being given a proper opportunity to address the issue. (5) While an inspector is bound to take into account representations made by third parties, who of course are not bound by any statement of common ground, the principal parties should be entitled to rely upon matters agreed in a statement of common ground. (6) If the inspector considers that a line of argument pursued by a third party should be followed, then he is bound to give the principal parties an opportunity to address that line of argument, acceding to an application for an adjournment if necessary.
John Martin
