West v First Secretary of State & Anor

Parties to a planning appeal conducted by written representations must ordinarily provide all material on which they rely. The inspector may decide the appeal on that material, while examining it rigorously and testing it against the opposing case. Fairness requires further inquiry or an oral hearing only in an exceptional case where particular circumstances make reliance on the submitted material unfair.

When assessing inappropriate development in the Green Belt, the decision-maker must consider both the policy harm arising by definition and any actual harm. Claimed very special circumstances must be assessed collectively. A procedural challenge requires real unfairness causing substantial prejudice; relief may be refused where further inquiry could not have affected the outcome.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of her section 78 appeal. She had sought temporary permission to retain a mobile home and hard standing in the Metropolitan Green Belt.

The inspector found inappropriate development, visible harm to openness and no very special circumstances sufficient to outweigh the Green Belt harm. The claimant relied particularly on her depression and her daughter’s educational needs.

The issues were whether the inspector adequately assessed actual Green Belt harm, considered the claimed special circumstances collectively, and acted unfairly by failing to seek further evidence under the written representations procedure. The claimant also alleged incompatibility with article 6(1) of the European Convention on Human Rights.

1. The claim was dismissed. The inspector had followed the orthodox Green Belt analysis. He considered the policy harm arising from inappropriate development and separately identified actual, visible harm to openness. His account of the site, surrounding openness, screening and viewpoints adequately explained the nature and extent of that harm.

2. The claimed very special circumstances had to be considered as a whole. The inspector was entitled first to examine each consideration separately. His concluding paragraph was properly read as drawing those matters together and rejecting the claimant’s case in its entirety. Planning decisions of this kind should not be construed strictly.

3. Under the written representations procedure, the general rule is that each party must submit the material on which it relies. The inspector may decide the appeal on that material. The inquisitorial burden described in Dyason v Secretary of State for the Environment [1998] JPL 778 requires rigorous examination and testing of the submitted material, but ordinarily requires no further inquiry.

4. Exceptionally, fairness may require the inspector to request further information or change to an oral hearing. The applicable Regulations permit both courses. Dyason and R (Singh) v First Secretary of State [2004] EWHC 2366 (Admin) turned on special circumstances in which the appellants had not received a fair determination. They were readily distinguishable.

5. Nothing before the inspector indicated that further inquiry was required. The health and educational cases had been presented with supporting letters. The inspector was entitled to regard that evidence as brief and lacking exceptional features. Even during the challenge, the claimant identified no further material which might have changed the result.

6. A planning challenge alleging procedural unfairness requires proof of real unfairness causing substantial prejudice. Even if further inquiry had been required, the absence of evidence that it might have affected the outcome would have justified refusing relief as a matter of discretion.

7. The written representations procedure was compatible with article 6(1). Since ordinary procedural fairness required no further inquiry in this case, article 6 imposed no additional requirement.

1. High Court (Administrative Court): The challenge under section 288 of the Town and Country Planning Act 1990 was dismissed.

2. Planning inspector: The inspector dismissed the claimant’s section 78 appeal against the local planning authority’s refusal of temporary planning permission.

3. Rochford District Council: The council refused permission to retain the mobile home and hard standing.