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No breach of natural justice when planning inspector relied on matters not identified as main issues

Out-Law News | 17 Apr 2014 | 4:15 pm | 3 min. read

A planning inspector was not in breach of the rules of natural justice or procedural fairness when she dismissed an appeal against a refusal of planning permission on grounds that had not previously been identified as 'main issues', the Court of Appeal has ruled.

Overturning a decision of the High Court, the Court of Appeal said that the issues relied upon by the planning inspector in this case were both "live issues on the evidence", and as such she was entitled to take them into account. It could not be said that there was "procedural unfairness which materially prejudices a party to a planning inquiry" in this case, the court said.

Litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that the circumstances of the case required a balancing act by the court between fairness to the parties and considering the whole merits of a case.

"On the one hand, against a reality that there are usually two main parties - developer and council - the pressure for efficiency and economy pushes hard towards agreement, narrowing issues, bringing witnesses only on these points and focussing on what is left," he said. "On the other, whatever the parties have said or agreed, and whatever the inspector has contributed to that, by decision time other issues may have crept in and the courts will always favour an approach which allows the whole merits to come in, whatever may have been said - unless to do so would be unfair to a party."

"In the real world an inquiry date, once reached, is intended to be the end of procedure and it is difficult to fault a party which comes equipped to deal with the identified issues only. Otherwise, what is the point of the effort? The converse is also true – they will not come equipped to deal with issues not identified at all. Inspectors will need to be skilled at managing the conflicts which may arise," he said.

The Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) rules set out the procedures to be followed in planning appeals. Among other matters, the rules require the planning inspector to identify "what are, in his opinion, the main issues to be considered at the inquiry" at the start of the inquiry. However, this rule does not prevent the parties and any persons "entitled or permitted to appear" from referring to other relevant issues during the inquiry. The inspector must notify the parties in writing if he or she plans to take into account "any new evidence or any new matter of fact" which does not come up during the inquiry as part of the decision, in order to allow them to make written representations or request that the inquiry be reopened.

The developer, Hopkins, applied for planning permission to build 58 houses on a field at the edge of Wincanton, Somerset on 14 July 2011. Somerset District Council refused the application on 12 October 2011. Hopkins appealed, and Janice Trask was appointed as inspector to carry out an inquiry in July 2012.

Setting out her Notes of Inquiry Procedure ahead of the inquiry hearing, Trask identified certain "matters to be addressed at the inquiry" including the need for housing in the area, the effect of the proposal on highway safety and the effect of the proposal on the safety and convenience of users or a local hospital and future residents. Some of these issues were abandoned during the hearing. Refusing the appeal in her final decision letter, the inspector identified additional main issues based on the character and appearance of the area, and whether the proposed housing site was in a sustainable location. Hopkins appealed the inspector's decision to the High Court, which held that the inspector had acted in breach of the rules of natural justice by reaching conclusions based on issues that the developer had not had a chance to deal with.

In his leading judgment, Lord Justice Jackson said that the purpose of the planning rules was to enable the inspector to "focus the hearing without confining its scope at the outset". This did not take away from the inspector's duty to "conduct the proceedings so that each party has a reasonable opportunity to adduce evidence and make submissions on the material issues", regardless of whether they were identified at the outset or emerged during the course of the hearing.

"The question of sustainability was clearly a live issue in the inquiry," he said. "The fact that the inspector had not identified this issue in her [initial statement] was no more than an indication of her preliminary views ... Hopkins was or ought to have been aware that lack of sustainability was part of the case which it had to meet. Hopkins had a reasonable opportunity to adduce evidence and make submissions on that topic. There was no procedural unfairness in this respect."

"The inspector did not identify [character/appearance] as a main issue in [her statement]. On the other hand, a number of third parties raised this issue ... Thus character/appearance was clearly an issue in the inquiry, even though the inspector's preliminary opinion was that this was not a main issue. It remained a matter which the inspector could consider, especially when she made her site visit," he said.