Outline planning permission for residential development — Local inquiry — Inspector recommending refusal — Secretary of State granting conditional permission following representations by interested parties — Post inquiry correspondence — Applicant not given opportunity to comment on certain letters — Whether breach of rules of natural justice — High Court holding that there was no risk of injustice or substantial prejudice to applicant — Secretary of State’s decision upheld
This was an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the Secretary of State whereby he granted outline planning permission on two identical applications for: residential development on two pieces of land, “Stonehill” and “Wheatpieces”; the provision of an Eastern Relief Road; a school; public open space; a footpath and associated infrastructure, on land off Ashchurch Road and Gloucester Road, Tewkesbury. The applicants were promoting two competing sites of their own at Cowbridge Farm and Fiddington Lane, Ashchurch. There were undetermined appeals in respect of those two sites.
A public local inquiry was held in respect of the disputed developments. The applicant attended and participated in that inquiry as the principal objector. Neither the borough council nor the county council raised objections. The inspector recommended that planning permission be refused. However, the Secretary of State indicated that he was “minded to grant” permission subject to conditions. He sought representations from the interested parties as to the conditions. Following receipt of the representations, the Secretary of State granted the outline planning permission. The decision letter included a schedule of post inquiry representations which revealed the existence of correspondence upon which the applicant had had no chance to comment. The applicant sought to challenge that decision in the High Court. It alleged, among other things, breaches of natural justice with the result that the decision was not lawfully reached and was invalid.
Held The application was dismissed.
1. There was no such thing as a technical breach of natural justice. There had to be a risk of substantial prejudice to the applicant.
2. The test to be applied in determining whether there had been a breach of natural justice was whether a reasonable person, viewing the matter objectively and knowing all the facts known to the court, would consider that there was a risk that the procedure adopted by the Secretary of State would result in injury and unfairness to the applicant. Whether there had been a breach of natural justice, applying that test, was a matter of fact and degree.
3. The applicant in this case was not entitled to appear at the inquiry as of right. It was allowed to do so at the discretion of the inspector. However, its status as a discretionary party did not of itself affect the application of the rules of natural justice and the test to be applied.
4. Where letters were received at the request of the Secretary of State without the knowledge of another party, it was necessary to scrutinise them carefully to see whether there was any risk of unfairness or injury. Having considered the contents of those letters, the court had come to the conclusion that a reasonable person knowing all the circumstances, would not consider that there was any risk of injustice or unfairness to the applicant. They had not suffered substantial prejudice and there had not been any breach of the rules of natural justice.
Keith Lindblom and Andrew Newcombe (instructed by Berwin Leighton) appeared for the applicant; David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State; Patrick Clarkson QC and Stephen Morgan (instructed by Moore and Blatch, of Southampton) appeared for Bovis.
