Poole, R (on the application of) v Secretary of State for Communities & Local Government & Anor

In a planning inquiry, procedural fairness depends on whether the parties could reasonably anticipate the issue that determined the outcome and had a proper opportunity to answer it. An inspector may use independent planning expertise and is not bound by an apparent agreement in a statement of common ground. But reopening an apparently agreed technical issue may require an adjournment and expert evidence. Modern inquiry rules permit parties to focus their proofs on genuinely disputed matters; they need not prepare for every conceivable line of reasoning. Where an inspector relies on a technical issue that was not fairly flagged, and the affected party could have called relevant expertise, the decision is procedurally unfair. The claim under the Town and Country Planning Act 1990 was therefore allowed.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision dismissing his section 78 appeal against Cannock Chase District Council’s refusal of permission for four houses. The council’s stated reason was over-development. The Inspector rejected the appeal solely because the proposed layout threatened a protected beech tree, T7, and also rejected the claimant’s costs application. The claimant challenged both decisions, contending that the tree issue had been treated as capable of resolution by conditions in an agreed statement of common ground and had not been fairly presented as a technical issue requiring arboricultural evidence. The central question was whether refusing an adjournment and deciding the appeal on that basis denied a fair opportunity to respond.

The application under section 288 of the Town and Country Planning Act 1990 was allowed. The related challenge to the Inspector’s costs decision was allowed because it stood or fell with the planning decision.

1. Fairness. The question whether an inquiry was procedurally fair was guided by whether the relevant issue was new, whether it could reasonably have been anticipated, whether the claimant had been deprived of an opportunity to present material, and whether the claimant had failed to recognise an issue that was fairly and squarely in dispute. The court applied the approach described in Fairmount Investments v Secretary of State and Southwark Borough Council [1976] 1 WLR 1255 and Castleford Homes v Secretary of State for the Environment and the Royal Borough of Windsor and Maidenhead [2001] EWHC Admin 77; [2001] PLCR 29.
2. Inspector’s role. An inspector may use planning expertise and form an independent judgment. An inspector is not bound by a statement of common ground, but must give the parties a fair opportunity to comment before departing from an apparently agreed position. The court applied the principles in Westminster Renslade Limited v Secretary of State for the Environment [1983] JPL 454 and Wigan Metropolitan Borough Council v the Secretary of State for the Environment [2001] EWCA Admin 587; [2002] JPL 417.
3. Modern inquiry procedure. The Rules and associated procedural guidance are designed to focus the parties’ evidence on matters genuinely in dispute. If the principal parties reasonably believe that an issue has been resolved in a statement of common ground, it may be unfair for the inspector to reopen it without allowing proper preparation. Where necessary, that may require an adjournment and appropriate expert evidence. A witness who happens to be present may not possess the professional expertise required to address a newly disputed technical issue.
4. Application. Before the council’s proof of evidence, there was no sufficient indication that retention of T7 would be the critical issue. Although the proof raised the matter, the subsequent statement of common ground reasonably led the claimant to believe that T7 could be protected by conditions. The Inspector later relied on technical conclusions about roots, light, branching, instability and pruning, treating T7 as the sole determining issue. The claimant’s planning witness was not an arboricultural expert, and his general answers could not replace the opportunity to obtain specialist evidence. The discrepancy between the evidence about canopy size did not affect the result. The Inspector was entitled to reach her planning conclusions on the evidence available, but the claimant had not been given a fair opportunity to address the technical issue. The decision was therefore procedurally unfair.
5. Costs. The costs were directed to detailed assessment. The judge indicated that the base costs appeared broadly reasonable but did not determine individual items or the success fee.

The Inspector dismissed the claimant’s section 78 planning appeal on 4 August 2006 and rejected the associated costs application. The High Court (Administrative Court) allowed the claim challenging both decisions.