Francis v First Secretary of State & Anor

At an informal planning hearing, an inspector has an enhanced inquisitorial role because cross-examination is normally excluded. The inspector must ensure a full and fair examination of the main issues, but the duty is fact-sensitive and limited. An appellant remains responsible for presenting the case fully, including evidence addressing objections clearly identified before the hearing. Where the appellant is professionally represented and ought reasonably to know that an issue is live, the inspector may assume that it is being addressed and need not prompt a different case theory. Fairness requires further intervention where the inspector proposes to decide on an unexplored point which the party could not reasonably have anticipated. An inspector may assess a proposed planning solution on the material available at the hearing.

Mrs Ondine Francis applied to quash decisions of the First Secretary of State concerning planning appeals relating to premises at Royal Hill, Greenwich. Planning permission permitted use as a tea room and coffee shop, subject to a condition prohibiting cooking without prior approval. After enforcement action, the London Borough of Greenwich refused applications to vary or remove the condition.

The inspector conducted an informal hearing and dismissed the appeals, concluding that the proposed ventilation arrangements did not adequately address odour, noise and amenity concerns and that the condition remained reasonable and enforceable. The Administrative Court, Lloyd Jones J, dismissed the judicial review application. The central issue before the Court of Appeal was whether the inspector had acted unfairly by failing to raise expressly the need for a high-level ventilation duct and related technical matters.

1. Disposition. Pill LJ dismissed the appeal. Keene LJ agreed, and Toulson LJ agreed with both judgments. The inspector’s decision was therefore upheld.
2. The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 and the guidance in ODPM Circular 05/00 contemplated a less formal hearing, normally without cross-examination, but still required a full and fair examination of the main issues. The inspector accordingly had an enhanced inquisitorial role. That role remained subject to limits and did not require the inspector to search for material or develop a case which the appellant had not advanced.
3. The court treated Dyason v The Secretary of State for the Environment [1998] JPL 778 and LB Croydon v Secretary of State for the Environment [1999] EWHC Admin 748 as recognising the enhanced role in an informal hearing. The present case was materially different from the procedural failure in Dyason. The approach in Castleford Homes Ltd v Secretary of State & RB Windsor & Maidenhead [2001] EWHC Admin 77 provided the closer analogy: further intervention is required where a party could not reasonably have anticipated an unexamined point, but not where the point should reasonably have been apparent from the material and arguments.
4. The authority’s objections to the low-level ventilation system and the need for a high-level duct had been identified in advance. The appellant was professionally represented and presented her case on the basis that the low-level system was sufficient. The inspector was entitled to assume that this was an informed forensic choice and was not required to ask why the representative had not advanced a different case. The issues of odour and noise were also plainly live.
5. The inspector was entitled to assess the proposed system on the evidence available at the hearing. Later technical opinions could not establish unfairness, particularly as no answer would have been available at the hearing even if the inspector had asked further questions. In the context of the objections, evidence of the feasibility of sealing the premises and controlling smells should have been available if that case was to be pursued. The low-level system was properly found inadequate, and the appeal was dismissed.

1. Court of Appeal (Civil Division) — [2008] EWCA Civ 890: appeal dismissed.
2. Administrative Court — Lloyd Jones J, 29 November 2007: judicial review application dismissed; the inspector’s decisions were not quashed.