Edward Ware New Homes Ltd. v Secretary of State for Transport, Local Government and the Regions

An Inspector may form an independent view of the evidence and take account of site-visit observations. However, where the Inspector adopts a material line that was not explored at the inquiry, procedural fairness requires notice and a fair opportunity to respond. An agreed statement of common ground may narrow the matters requiring evidence, although it does not bind the Inspector. Where the procedural error may have affected the result, the court should not speculate that the outcome would have been the same. The decision should be quashed and remitted.

The appellant challenged the decision of a Planning Inspector dismissing its appeal against refusal of permission for residential development with office space on a former mushroom-farm site in the Green Belt. The Inspector concluded, following a site visit, that low-grade employment or commercial re-use was unlikely, although the issue had not been explored at the inquiry in that way.

Mr James Goudie QC, sitting as a Deputy Judge of the High Court in the Administrative Court, dismissed the appellant’s application under section 288 of the Town and Country Planning Act 1990. The appeal concerned whether the Inspector had acted unfairly by relying on an untested conclusion based on the site visit, and whether the remaining Green Belt reasoning could stand despite that error.

The appeal was allowed. The Inspector’s decision was quashed and the matter was remitted to the Secretary of State.

1. The agreed statement of common ground prepared under Rule 15 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 was intended to limit the scope of the inquiry and identify matters on which evidence would not be required, subject to any direction by the Inspector. The parties had therefore been entitled to proceed on the basis that the future employment use of the site was not being examined as an unrealistic or unavailable prospect (para [4]).
2. Rule 18(3) of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 requires notice and an opportunity for written representations or reopening where, after the inquiry, an Inspector proposes to rely on new evidence or a new material matter of fact. More generally, where an Inspector takes a line not explored at the inquiry, procedural fairness requires a fair opportunity to comment, including an opportunity to obtain assistance from relevant experts. The exception identified in Castleford Homes v Secretary of State for the Environment [2001] PLCR 470 did not apply because the parties could not reasonably have been expected to address the point (paras [15]–[16], [22]–[23]).
3. The Inspector was entitled to weigh what he had observed on the site and was not bound to accept professional evidence. Nevertheless, the evidence relied on had been adduced for different purposes and had not been tested or deployed on the question whether the site had any realistic industrial or commercial future. The Inspector was not entitled to reach that material conclusion without first giving the parties an opportunity to respond (paras [18]–[23]).
4. It was unnecessary to determine the separate reasoning challenge or to speculate whether the Green Belt conclusion would have been unchanged if the procedural error had not occurred. The court could not say that the Inspector would necessarily have reached the same result. The appropriate remedy was therefore to quash the decision and remit the matter (paras [24]–[27]).

1. Court of Appeal (Civil Division) (16 April 2003): allowed the appeal, quashed the Planning Inspector’s decision and remitted the matter to the Secretary of State, with costs.
2. High Court, Administrative Court (19 December 2001): Mr James Goudie QC, sitting as a Deputy Judge, dismissed the appellant’s application under section 288 of the Town and Country Planning Act 1990.