Elliott, R (on the application of) v First Secretary of State

In a planning inquiry, an inspector must give proper, intelligible and adequate reasons for the decision, addressing each substantial point raised. An inspector should not decide an issue which has not been ventilated at the inquiry without giving the affected party a fair opportunity to address it. This applies where the inspector’s concern bears materially on the outcome, although it does not require the inspector to disclose a tentative view or invite further evidence on every evidential deficiency. In Green Belt cases, the fact that development is inconspicuous does not remove harm arising from inappropriateness, openness or landscape impact. Where a decision may have been affected by procedural unfairness, the court will quash and remit rather than substitute its own planning judgment.

The claimant sought judicial review of an inspector’s decision upholding, with variations, an enforcement notice issued under Town and Country Planning Act 1990 section 172. The notice concerned unauthorised external vehicle storage, a palisade fence, gates and security equipment at Lenox Farm in the Green Belt. On the claimant’s ground (a) appeal, the inspector refused planning permission, finding harm to the Green Belt and landscape, conflict with transport policy, and no very special circumstances.

The claimant challenged the decision on the adequacy of the inspector’s reasons, the sustainability finding, procedural fairness in questioning the viability of the proposed agricultural enterprise, and the inspector’s description of the earlier planning permission. The central issue was whether the inspector had fairly and lawfully determined the diversification case.

1. Grounds 1 and 2. The challenges to the inspector’s reasoning on visual harm and sustainable transport were unarguable. Development may harm landscape or visual amenity even when it is largely hidden from public viewpoints. The weight given to that harm is for the decision-maker. The inspector also gave adequate reasons for finding that the airport parking operation encouraged additional car travel and conflicted with the airport’s Surface Access Strategy.
2. Reasons and fairness. An inspector must give proper, intelligible and adequate reasons dealing with each substantial point raised: South Buckinghamshire Council v Porter (No 2) [2004] 1 WLR 1953. An inspector should not rely on a material issue which has not been ventilated at the inquiry: Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255. The question is whether, standing back and assessing the circumstances, the approach was fair.
3. The local planning authority had accepted that diversification was needed and had argued only that it did not amount to very special circumstances. The claimant had given unchallenged evidence about his financial position and the agricultural building was under construction. The inspector nevertheless questioned the credibility and future viability of the agricultural enterprise without raising that concern. A short opportunity to address the issue, potentially including conditions or a Town and Country Planning Act 1990 section 106 obligation, would have been fair.
4. The inspector’s use of “entirely” and “completely” to describe the earlier permission was unjustified, but that point alone would not have warranted quashing. The unfair reasoning on diversification informed the overall conclusion, and the court could not conclude that the inspector would necessarily have reached the same result had the claimant been given a fair opportunity.
5. The decision was quashed and remitted to the Secretary of State. Costs of £15,685.05 were awarded against the first respondent. Permission to appeal was refused.

The judgment describes a statutory appeal to a planning inspector, whose decision was challenged by judicial review in the Administrative Court. The inspector had upheld the enforcement notice with variations and dismissed the appeal under ground (a). The Administrative Court quashed the decision and remitted the matter to the Secretary of State.