Gates Hydraulics Ltd, R (on the application of) v Secretary of State for Communities and Local Government

An inspector determining a planning appeal must address the development plan and any material considerations, but need not use formulaic language if the correct approach is clear from the decision letter. Strategic regional policies may materially inform individual development-control decisions. Where parties have agreed that a main issue has been resolved in a statement of common ground, procedural fairness ordinarily requires an inspector with continuing concerns to raise them before deciding the appeal. A decision based on an unexpected technical issue, without giving the affected party a fair opportunity to respond, may breach natural justice.

The claimant sought under Town and Country Planning Act 1990 section 288 to quash an inspector’s dismissal of its appeal against refusal of outline planning permission for mixed residential and employment development at Station Road, St Neots.

The inspector concluded that the proposal would harm employment opportunities and future residents’ living conditions through noise and disturbance. The claimant challenged the decision on development-plan interpretation, material considerations, reasons, irrationality and procedural fairness. The central issue was whether the inspector had fairly determined noise and disturbance after the parties had agreed that the relevant noise issues could be addressed by mitigation and conditions.

1. Employment issues. The claim succeeded on procedural fairness, although the challenges concerning employment policy failed. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, an inspector need not expressly state whether a proposal accords with the development plan if the decision letter demonstrates that the statutory approach was adopted. The inspector had identified the relevant development plan, applied its policies and considered whether other matters outweighed the resulting harm.
2. Strategic policies E1 and E2 of the East of England Plan were capable of informing an individual development-control decision. Their strategic character did not prevent consideration of their underlying objectives. The inspector was entitled to treat the appeal site as employment land likely to be needed in the future and to consider whether its continued employment use was feasible. The informal Huntingdon Interim Planning Policy Statement was also a material consideration, although entitled to less weight.
3. Noise and disturbance. The parties’ statement of common ground recorded agreement that future employment use might cause noise, that mitigation could be dealt with by reserved matters and conditions, and that the statement covered all noise issues relevant to the appeal. The agreed condition addressed noise from industrial and transport sources.
4. The inspector accepted that mitigation could secure acceptable internal noise levels, but later refused permission because the character and proximity of employment-related activity might annoy future residents. Those concerns were substantially within the agreed noise issues. If the inspector nevertheless regarded noise and disturbance as unresolved, fairness required her to say so at the inquiry and give the claimant an opportunity to call or recall expert evidence. The claimant had a reasonable expectation that the issue had been resolved. The failure to provide that opportunity was a breach of natural justice.
5. An inspector is not generally required to devise conditions to overcome every concern. Here, however, the agreed condition was material and had to be considered in deciding whether it addressed the residual concern. The decision letter was quashed. The claimant was awarded costs of £14,000.