FH Cummings v Weymouth & Portland Borough Council

An inquiry inspector must exercise a genuine discretion when deciding whether to admit late evidence. Lateness and non-compliance with directions are relevant, but so are the reason for the delay, the importance of the evidence and whether an adjournment or other case-management measure could preserve fairness.

The inquiry must be fair when considered as a whole. An objector must know the case to be met and have an adequate opportunity to answer it. Where expert evidence concerns a determinative issue, refusing its admission without properly considering its significance and possible consequences may amount to procedural unfairness.

A planning inspector must give intelligible and adequate reasons for material disputed findings. Separate planning designations require separate consideration and reasons.

The claimant sought judicial review under section 287 of the Town and Country Planning Act 1990 of the adoption of parts of the Weymouth and Portland Local Plan Review.

The claimant owned the Destiny Fields site. The plan excluded Areas A, B and D from the Defined Development Boundary and designated them as an Important Open Gap and an Area of Local Landscape Importance. A competing Louviers Road site was included within the boundary and allocated for housing.

The claimant challenged the plan on natural justice and reasons grounds. At the local plan inquiry, the inspector refused to admit late expert drainage evidence, although drainage was a determinative issue in the comparison between the two sites. The central questions were whether the inquiry had been fair and whether the inspector had adequately dealt with the objections and reasons for the designations.

1. Application allowed. The inspector had failed properly to exercise his discretion on the admission of the claimant’s late drainage evidence. A tribunal may manage its procedure robustly, but lateness is only one factor. The reason for the delay, the importance of the evidence to the determinative issues, the opportunity for the opposing party to respond and the possibility of an adjournment must also be considered.
2. The fairness of an inquiry must be assessed in the circumstances of the case as a whole. The claimant had misunderstood the existence of an unresolved drainage issue, but that misunderstanding was not caused by the Council. Nevertheless, the late report purported to answer the Council’s technical objections and was potentially decisive. The inspector did not read it, did not allow the Council’s experts time to assess it, and did not adequately revisit the decision when the inquiry continued for several further days.
3. Allowing cross-examination on the substance of an excluded expert report did not cure the unfairness. The claimant’s planning witness was not a drainage expert and could not provide an adequate substitute. The claimant was substantially prejudiced in presenting its case on drainage and in comparing Destiny Fields with Louviers Road.
4. The inspector’s treatment of drainage was also unclear because it was uncertain which surface-water scheme he had considered. This reflected the inadequate handling of the expert evidence.
5. The claimant had made a valid objection to the Area of Local Landscape Importance designation. Under the Town and Country Planning (Development Plan) (England) Regulations 1999, an objection need not use a prescribed form if its substance and grounds are clear. The designation required separate consideration and reasons; it could not be treated as rolled up with the Development Boundary or Important Open Gap designations.
6. The reasons complaints concerning the landscape comparison and departure from the earlier report would not, standing alone, have succeeded. The inspector was entitled to reach a different planning conclusion in changed circumstances, provided the material evidence was considered. The natural justice breach was sufficient to quash the relevant designations.
7. The Defined Development Boundary exclusions and inclusions, the Important Open Gap and Area of Local Landscape Importance designations affecting Areas A, B and D, and the Louviers Road housing allocation were quashed. The Council was required to notify persons with an interest in the Louviers Road site, who were given an opportunity to make representations concerning relief. The Council was ordered to pay the claimant’s costs.