Town and country planning – Planning appeal – Procedural fairness – Planning appeal under section 78 of Town and Country Planning Act 1990 – Appeal conducted by way of hearing before inspector – Second hearing held to remedy failure to notify objectors of first hearing – Inspector granting planning permission – Inspector’s decision later quashed for procedural unfairness – Whether second hearing vitiated by procedural unfairness – Whether inspector wrongly taking into account evidence from first hearing on which objectors not given an opportunity to comment – Appeal allowed
The second appellant developer appealed to the first appellant secretary of state, under section 78 of the Town and Country Planning Act 1990, against a refusal of planning permission for a development of 100 houses on farmland in Great Dunmow, Essex, to which the respondent local residents had objected. The appeal was conducted by way of a hearing before a planning inspector. The district council, as the local planning authority, took responsibility for giving notification of the hearing to objectors, pursuant to r 7(5) of the Town and Country Planning (Hearings Procedure)(England) Rules 2000, but in the event it failed to do so. None of the objectors turned up to the hearing or subsequent site visit.
When the council’s omission came to light, the inspector decided to conduct a full rehearing on proper notification. After conducting that hearing, at which the objectors were present, he allowed the appeal and granted planning permission for the development.
The respondents brought proceedings, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision. Permission was later granted, under CPR 17.1(2)(b), for an amendment to the claim to allege procedural irregularity in the inspector’s decision-making process: see [2012] EWHC 3585 (Admin) and [2013] EWCA Civ 817; [2013] 3 EGLR 165. The respondents complained that the developer had had access to the inspector over three days, including the original hearing date and site visit, whereas the objectors had had been limited to one, and they argued that, in the interests of procedural fairness, the second hearing should have been conducted by a different inspector. They also made various criticisms of the second hearing itself, alleging that it was short and perfunctory and gave the impression that the inspector had already made his mind up.
Allowing the claim, the judge held that there was an appearance of unfairness and actual unfairness in the way that the second hearing had progressed and in the inspector’s consideration of evidence given at the first hearing. He took the view that the objectors were entitled to be heard and concluded that it was appropriate to quash the planning permission.
The appellants appealed. They contended that the judge had fallen into error by equating the position of the objectors with that of formal parties to a planning inquiry rather than attendees and an informal hearing.
Held: The appeal was allowed.
Since the hearing was not an “inquiry” and the objectors were not “parties” to it, the objectors were not, strictly speaking, “entitled to be heard” because their participation in the hearing was at the discretion of the inspector. However, in practical terms, objectors of that nature would always be given an opportunity to be heard at the hearing in an appeal if they so wished. The real issue was whether the judge had been right to conclude that there had been a want of procedural fairness that prejudiced the objectors.
The features required to provide procedural fairness to participants in an administrative or quasi-judicial process were necessarily fact and context specific. The procedure at a planning hearing lacked much of the formality of a planning inquiry. It involved a discussion led by the inspector and centred on the document that he had produced, even though that did not preclude other issues from being raised and discussed. There was ordinarily no cross-examination and the calling of formal evidence was usually limited. Those features flowed from r 11 of the 2000 Rules, the effect of which was generally to emphasise the informal nature of the process. A complaint concerning procedural fairness from persons in the position of the objectors on a section 78 appeal determined by way of a hearing would be answered by asking whether they had been given a reasonable opportunity to raise their points in the course of the hearing and, if not, whether they had suffered any material prejudice. A reasonable opportunity to raise their points entailed knowing the main points relied on by those whose plans they were objecting to.
Although the objectors had had no opportunity to raise their points at the first hearing, the denial of that opportunity could be cured, even if the inspector took account of what was said at the first hearing, if the objectors were apprised of what was said at that hearing and given a reasonable opportunity to comment on it at the second hearing. The judge had erred in finding that the inspector had taken account of evidence and argument from the first hearing of which the objectors had not been apprised, or that the objectors had not been given a reasonable opportunity to deal with that material. The evidence showed that the inspector treated the second hearing as a fresh hearing. He had stated his intention to re-run the hearing in its entirety, in conformity with the indication given in correspondence. The objectors were able to make whatever points they wished at the second hearing. There was no issue of which the objectors were not apprised and they had been given every opportunity to comment. The inspector had been scrupulously fair to the objectors and the criticisms of him lacked foundation.
The judge had therefore erred in quashing the inspector’s decision on the grounds of procedural irregularities and his order should be set aside accordingly.
Richard Kimblin (instructed by the Treasury Solicitor) appeared for the first appellant; Stephen Whale (instructed by Berwin Leighton Paisner LLP) appeared for the second appellant; Annabel Graham Paul (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondent.
Sally Dobson, barrister
Click here to read transcript: Vincente v Secretary of State
