Planning appeal – Natural justice – Appeal by written representations – Expert noise report countering one of grounds for refusing planning permission – Respondent’s planning inspector allowing appeal and granting permission – Judge upholding grant of planning permission – Whether inspector erring in following written representation procedure after expert evidence adduced – Appeal allowed
The third respondent applied to the second respondent council for planning permission for a residential development comprising 43 flats and a parking area. Local residents, including the appellant, objected to the application. The second respondents refused planning permission on grounds that included noise disturbance from cars entering and leaving the car park.
The third respondent appealed to the first respondent secretary of state indicating that it was content for the appeal to be conducted by written representations and the second respondents did not object. The Planning Inspectorate made a determination, under section 319A of the Town and Country Planning Act 1990, that the appeal should proceed in that way. The third respondent’s representations were accompanied by a noise consultant’s report, produced on the last day of the limitation period, which assessed the expected noise from vehicles using the parking area and advised that this would fall within acceptable levels. The second respondents advanced no evidence to counter that report. An inspector allowed the appeal, finding that the noise levels from vehicle movements would not be significantly harmful to the amenity of adjacent residents.
The appellant brought a claim, under section 288 of the 1990, to quash the inspector’s decision on grounds of procedural unfairness, contending that: (i) it had been unfair to determine the appeal by written representations and not to review the procedure in the light of the noise report, denying local residents an opportunity to make submissions on the new evidence comprised in that report; and (ii) the first respondent had failed to make a lawful screening decision with adequate reasons for his conclusion that the development did not require an environmental impact assessment (EIA).
The judge upheld the grant of planning permission on the basis that the appellant could have found out about the expert report by visiting the second respondents’ planning office to inspect the documents that were to go before the inspector and asked for an opportunity to make further representations. Further the screening decision had been adequate: [2011] PLSCS 91; [2011] 14 EG 94 (CS). The appellant appealed.
Held: The appeal was allowed.
(1) The third respondent’s original application for planning permission had been refused because of its impact on specific premises alongside the proposed parking area. The issue of noise disturbance had been crucial and expert evidence had neither been mentioned nor contemplated in the third respondent’s grounds of appeal. The written representations procedure had been adopted because no expert evidence was expected.
The general procedural guidance – planning appeals and called-in planning applications (PINS 01/2009) provided that the written representation procedure would be appropriate if there was no need to challenge evidence by questioning. However, it was appropriate to hold a planning inquiry where it was necessary to test evidence and where there were expert witnesses. In the present case, that guidance gave a strong indication that if the third respondent’s report was to be challenged, a different procedure should have been followed. Where the written representations procedure was adopted, the guidance strongly discouraged an interested party from making inquiries of a planning officer after the end of six-week period for representations (in this case, 29 October). Since the appellant had been told expressly that any representations made after that date would not be considered by the planning inspector, he could not be blamed for failing to inspect evidence submitted on the last possible day. The appellant had not been given the opportunity to respond to which he was entitled: Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 EGLR 18; (1976) 240 EG 859 followed.
In all the circumstances, the judge had erred in concluding that it was not unfair to expect the appellant, as an interested person, to have availed himself of the opportunity to make inquiries as to what representations had been made by the third respondents or inspect the second respondents’ file. Furthermore, in finding that the written procedure was appropriate, the judge had relied on the fact that the expert’s report was uncontroversial when the only reason that the appellant had not opposed it was because he was not aware of it. Accordingly, the appeal hearing had been unfair and in breach of natural justice and the planning permission had to be quashed.
(2) The screening decision had been adequately reasoned and expressed and appropriate answers on the substantive points given: R (on the application of Mellor) v Secretary of State for Communities and Local Government (Case C-75/08) [2009] PLSCS 142; [2009] 18 EG (CS) considered.
(Per curiam) The general procedural guidance ought to be reviewed to prevent the recurrence of the unfairness which arose in the present case by providing for an interested party to make representations after the six week limitation period had expired where appropriate.
Daniel Kolinsky (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the appellant; Lisa Busch (instructed by the Treasury Solicitor) appeared for the first respondent; Peter Village QC and Andrew Tabachnik (instructed by Eversheds LLP, of Birmingham) appeared for the third respondent; The second respondents did not appear and were not represented.
Eileen O’Grady, barrister
