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

The Court of Appeal allowed an appeal against a Deputy Judge's dismissal of an application for judicial review of a planning Inspector's decision. The court held that the Inspector relied decisively on impressions gained from a site visit which introduced a new factual concern (that the buildings were so dilapidated that there was no realistic future commercial re‑use) without complying with Rule 18(3) of the Inquiries Procedure Rules to notify the parties and give them an opportunity to comment. The failure gave rise to procedural unfairness and required quashing of the Inspector's decision and remittal. The court treated Rule 15 (statement of common ground), Rule 18(3) and section 288 of the Town and Country Planning Act 1990 as central to the procedural requirements in this appeal.

Background and facts:

• The appeal concerned 1.74 hectares at Gatcombe Farm Industrial Estate in the Bristol and Bath Green Belt that had been used for low grade mushroom‑related research and then for a variety of industrial/commercial uses in low quality units. Planning history included a 1992 permission for a business park (renewed in 1996), an unsuccessful 1997 outline residential proposal and refurbishment of units in 1998 with sporadic lettings (15 of 30 units occupied in 2000, falling to five by the Inquiry in June 2001).
• The appellant sought planning permission for ten dwellings with integrated office space. The local planning authority refused in November 2000; the appellant appealed and an Inquiry was held in June 2001. A substantial statement of common ground had been prepared pursuant to Rule 15 of the Inquiries Procedure Rules, including an agreed technical note on traffic and the likely fallback use of the site for low order B1/B2/B8 activities.

Nature of the claim and relief sought:

• The claimant applied for judicial review under section 288 of the Town and Country Planning Act 1990 seeking to quash the Planning Inspector's decision dismissing the appeal. Grounds included alleged failure to have regard to evidence of continuing lower order industrial use, failure to give parties an opportunity to comment on material matters arising from a site visit (Rule 18(3)), and inadequate reasoning.

Issues framed and procedural history:

1. Whether the Inspector was entitled to prefer impressions from a site visit to the evidence and agreed statement of common ground about the likely fallback use.
2. Whether, under Rule 18(3) and principles of procedural fairness, the Inspector was required to notify the parties and permit representations if he intended to rely on new matters of fact not raised at the Inquiry.
3. Whether the Inspector gave adequate reasons as to the future of the site and whether any error affected the Green Belt balancing exercise.

Court's reasoning and conclusions:

• The Deputy Judge had found the Inspector's conclusion open on the evidence, but the Court of Appeal examined whether the Inspector's reliance on his site visit introduced a material factual finding not explored at the Inquiry.
• The Court concluded that the Inspector had formed and given considerable weight to the view that the buildings were semi‑derelict and that re‑use by low‑order activities was unlikely. That view was not explored at the Inquiry and, because it amounted to a new matter of fact material to the decision, Rule 18(3) required notification to the parties and an opportunity to comment or to re‑open the Inquiry.
• Because the parties were not given that opportunity, procedural unfairness arose. The Court considered the Green Belt reasoning could have been affected by the traffic and fallback use findings and it was not possible to say the Inspector would have reached the same result absent the procedural error.

Disposition:

• The Court allowed the appeal, quashed the Inspector's decision and remitted the matter to the Secretary of State for reconsideration. Costs were awarded to the appellant with liberty to apply if necessary.

Appeal allowed. The Court of Appeal held that the Inspector had relied on material factual conclusions derived from a site visit which were not raised at the Inquiry; because Rule 18(3) required that parties be notified and given an opportunity to comment before the Inspector decided to rely on such new matters he had committed a procedural unfairness. The decision was quashed and the matter remitted for reconsideration.

Appeal from a judgment delivered on 19 December 2001 by Mr James Goudie QC sitting as a Deputy Judge of the High Court (Administrative Court) who dismissed the claimant's application for judicial review. The Court of Appeal allowed the appeal on 10 April 2003 and gave reasons in the reported judgment [2003] EWCA Civ 566.