Francis v First Secretary of State & Anor

In a planning statutory review, procedural fairness depends on the particular circumstances. An inspector conducting an informal hearing need not put every adverse inference expressly to a party where the relevant issue was clearly raised in the documents and was addressed in the party’s own case. The inquisitorial burden recognised in Dyason v Secretary of State for the Environment and Chiltern District Council remains fact-sensitive and does not require an inspector to identify every possible point.

A procedural error will not justify quashing a decision where the decision-maker would inevitably have reached the same conclusion on independent grounds. An inspector is also entitled to determine the appeal on the proposal actually advanced and need not devise or consider an unproposed planning condition.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s decision dismissing two appeals under section 78. The appeals concerned a condition preventing cooking at premises used as a tearoom and coffee shop. One appeal sought to vary the condition to permit specified food preparation; the other sought its removal.

The Inspector concluded that cooking would harm neighbouring living conditions, that the proposed low-level ventilation system would not adequately control odour or noise, and that the proposals could harm the conservation area. The claimant alleged that the Inspector had reached adverse conclusions about ventilation, a high-level duct and noise without giving a fair opportunity to respond. The central issue was whether the hearing had been procedurally unfair and, alternatively, whether any error could have affected the outcome.

1. Application dismissed. The Inspector correctly treated the issue as whether the condition continued to serve a valid and useful planning purpose. The proposed variation or removal had to be assessed against its effects on neighbouring residents and the conservation area.
2. The suitability and effectiveness of the proposed ventilation system were plainly in issue. The Council’s delegated report, refusal reasons and response to the claimant’s statement of case maintained objections concerning odour, noise and the effects of ventilation. The claimant’s own case positively asserted that the proposed system answered those objections. The claimant and her advisers therefore could not reasonably have believed that those matters were closed.
3. The requirement for a high-level discharge remained part of the Council’s position. The absence of a response to the claimant’s later proposal did not amount to acceptance of it. The fact that the relevant Public Services Department had ceased to exist was immaterial. The Inspector was entitled to determine the appeals on the proposal actually advanced.
4. The principle in Dyason v Secretary of State for the Environment and Chiltern District Council is fact-sensitive. An informal hearing must be fair, but the Inspector’s inquisitorial burden has limits. Here the claimant had been sufficiently alerted to the relevant issues and had made detailed submissions about the ventilation scheme. There was consequently no procedural unfairness.
5. In any event, any error would not have affected the result. The Inspector had several independent grounds for rejecting the proposal, including the likely persistence of cooking smells through the building’s walls and floors, the inadequacy of the proposed filtration, the absence of acceptable high-level discharge and the absence of noise attenuation. Applying the approach in Simplex GE (Holding) Limited v Secretary of State for the Environment, the decision would have been the same.
6. The Inspector was not required to consider a condition requiring the sealing of the internal walls and floors because that condition had not been proposed by the claimant. The application was dismissed. The claimant was ordered to pay the First Defendant’s agreed costs of £5,750. Leave to appeal was refused, and a 21-day stay was granted in relation to the enforcement notice to permit an application to the Court of Appeal.

The judgment describes an Inspector’s decision dated 15 December 2005 dismissing the claimant’s two planning appeals. This application for judicial review was dismissed by the High Court (Administrative Court). Leave to appeal was refused.