Lanni v First Secretary of State & Anor

An inspector determining a planning appeal is not confined to choosing between the parties’ submissions. The inspector must decide the appeal in accordance with published policy and the public interest, taking account of all material considerations. Procedural fairness does not require every potentially relevant point to have been identified at the outset, provided the issue arises fairly in the context of the inquiry and the parties have a proper opportunity to address it. Under PPG2: Green Belts, inappropriate development may be permitted only where the harm, including the harm from inappropriateness, and any other harm, is clearly outweighed by other considerations. Visual improvements may be material but need not amount to very special circumstances. An inspector may disregard late material under the applicable inquiry rules.

The claimant appealed under section 288 of the Town and Country Planning Act 1990 against an inspector’s dismissal of his section 78 appeal. The proposal involved demolishing a country hotel and replacing it with 23 flats in the Metropolitan Green Belt, the Surrey Hills Area of Outstanding Natural Beauty and an Area of Great Landscape Value.

The inspector accepted that the proposal would provide visual improvements and conserve the landscape character of the protected areas. He nevertheless concluded that it was inappropriate Green Belt development, that the site was poorly related to urban services and public transport, and that the benefits did not clearly outweigh the resulting harm. The central issues were procedural fairness, adequacy of reasoning, the application of the very special circumstances test, and Article 6 of the ECHR.

1. Appeal dismissed. None of the grounds of appeal disclosed legal error or procedural unfairness.
2. An inspector may consider matters which were not identified as issues at the beginning of the inquiry, provided they arise fairly from the evidence and the context of the case. The description of the existing premises as a country hotel, its continuing use and the need it fulfilled were matters the inspector was entitled to consider. The previously developed status of the site was material but did not, by itself, outweigh the presumption against inappropriate Green Belt development.
3. The inspector was entitled to consider the density and character of nearby housing, travel patterns, accessibility to services and the likely displacement of existing hotel and restaurant traffic. The reasoning was sufficient even though the inspector expressed the possible reduction in traffic as an assumption and did not adopt the claimant’s preferred formulation of the evidence.
4. The inspector was not required to act as a referee between the parties’ competing positions. His duty was to determine the appeal in accordance with published policy and the public interest, having regard to all material considerations. The visual benefits of the replacement development were accepted, but the inspector was entitled to conclude that they did not constitute very special circumstances under PPG2: Green Belts.
5. Under rule 18(2) of the Town and Country Planning (Appeals) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000, the inspector had discretion to disregard material received after the inquiry. His decision to reject a late appeal decision was unimpeachable, particularly as the material concerned a materially different site and had been submitted well after the inquiry.
6. The inspector’s references to conserving the AONB and AGLV did not show that enhancement had been rejected. His reasoning recorded several visual and landscaping improvements, and the claimant had succeeded on that aspect of the case. Article 6 of the ECHR was not engaged in a manner capable of assisting the claimant, and there was no lack of impartiality.
7. Costs were awarded to the First Secretary of State, summarily assessed at £4,746, subject to the agreed form of order.

• High Court (Administrative Court): dismissed the section 288 appeal against the inspector’s decision dated 10 January 2003.
• Planning inquiry: an inspector appointed by the First Secretary of State dismissed the claimant’s section 78 appeal concerning the proposed residential redevelopment.