Chaston & Anor, R (on the application of) v Devon County Council

Where a public authority appoints an expert inspector to conduct a non-statutory inquiry and recommend the resolution of a disputed issue, the authority remains the decision-maker but must respect the inquiry’s defined purpose. It may depart from the recommendation only for persuasive reasons. If it proposes to rely on new material or criticism of the recommendation, fairness may require notice of the proposed contrary decision, an opportunity to respond, and referral back to the inspector for reconsideration. Disclosure of the new material alone may be insufficient. The requirements depend on the circumstances, including the inspector’s remit, expertise and findings. A court reviewing the process should not determine the underlying merits where the challenge is to the fairness and rationality of the decision-making procedure.

The claimants sought judicial review of Devon County Council’s decision concerning the route of a public footpath near their property. The Council had commissioned a non-statutory hearing by an experienced planning inspector, whose terms of reference required him to consider the evidence and recommend the correct line of the path. The inspector recommended one route, but the Council adopted another after receiving further representations and advice from its County Solicitor. The claimants alleged irrationality and procedural unfairness. The central issue was whether the Council could depart from the inspector’s recommendation in that manner without giving notice of the proposed contrary decision and referring the additional material back to the inspector.

1. Decision and legal framework. The claim succeeded. The route decision was quashed. The statutory framework included the conclusive evidential effect of the Definitive Map and Statement under Wildlife and Countryside Act 1981, section 56(1), and the Council’s power to remove an obstruction under Highways Act 1980, section 143. The issue was whether the procedure used to exercise that power was rational and procedurally fair.
2. The appointment of a non-statutory inspector was an eminently fair course. The Council was not bound by his recommendation and he was not the decision-maker. But the specific terms of reference required him to assess the evidence, apply his expertise and recommend the line of the footpath. The inquiry could not therefore be treated merely as an evidence-gathering or evidence-provoking exercise.
3. Applying the approach in R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin), adopted from R v Suffolk County Council, Ex parte Steed (1995) 70 P&CR 487, fairness required the Council to take reasonable steps to acquaint itself with relevant information and to adopt a procedure fair in the circumstances.
4. In this case, natural justice required persuasive grounds for departing from the inspector’s recommendation. If the Council proposed to do so, it had to tell the claimants of that proposed course and allow representations on it. It also had to give them the opportunity to have the new material referred back to the inspector. Simply disclosing the material and inviting written comments was insufficient.
5. The additional material was not overwhelming. It concerned issues already before the inspector, and the County Solicitor’s report did not adequately place it in the context of the inspector’s findings. The resulting decision was irrational and procedurally unfair.
6. The matter was remitted to the original inspector to consider the additional material and review his recommendation. Authors of new material who requested an oral hearing were to be heard, and the inspector was permitted to hear earlier witnesses if justice required. Costs were ordered on the standard basis. Permission to appeal was refused.

First-instance judicial review proceedings. The High Court quashed the Council’s decision, remitted the matter to the inspector, and refused permission to appeal.