Powell & Anor v Secretary of State for Environment, Food & Rural Affairs & Anor

A decision-maker determining a public inquiry must approach an adjournment application by considering the applicant’s position personally, the preparation reasonably required, the potential prejudice caused by proceeding, and the competing public and private interests in expedition. Reliance on legal advisers or another party does not necessarily make the applicant responsible for the resulting lack of preparation. The impact of the decision may be irrelevant to the substantive statutory question but relevant to procedural fairness. A refusal to adjourn breaches natural justice where the applicant cannot properly present the case, the result might have differed after proper preparation, and the prejudice from proceeding substantially outweighs the inconvenience of an adjournment.

The claimants sought under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 to quash the Secretary of State’s decision confirming a footpath modification order affecting their property. They alleged that the inspector unfairly refused an adjournment of the public inquiry and that there was no evidence supporting the prescribed width of the footpath. The first claimant had relied on the developer, HSL Developments Ltd, to pursue an objection, but HSL ceased doing so after the property was sold. The central issues were whether the refusal to adjourn breached natural justice and whether the footpath width was lawfully determined.

1. The claim was allowed and the Secretary of State’s decision confirming the footpath modification order was quashed. The statutory challenge under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 is in the nature of statutory judicial review and is confined to ordinary public law grounds.

2. The inspector had to consider whether an adjournment was necessary for the first claimant, viewed personally and not merely through the acts or omissions of his representatives. In administrative proceedings, the ordinary rule attributing a legal adviser’s conduct to the client does not necessarily apply in the same way when natural justice is in issue.

3. The first claimant had been told that HSL would pursue the objection and was not at fault in relying on that agreement, which had been made through solicitors. After learning that HSL had not pursued the objection, he acted promptly to obtain specialist advice. The preparation identified in his written submissions could not reasonably be completed before the inquiry.

4. Remaining at the inquiry to cross-examine witnesses in the hope of exposing inconsistencies would not have been an adequate substitute for preparing the case in full. The impact of the order on the claimants’ property was irrelevant to the substantive footpath determination, but it was relevant to the procedural fairness of deciding whether to adjourn.

5. The refusal caused substantial prejudice and breached natural justice. It was not inevitable that the inspector would have reached the same decision had the first claimant been given a proper opportunity to prepare. Local residents could continue using an existing route, adding approximately 30 seconds to their journey, pending redetermination. The refusal was therefore outside the Secretary of State’s powers and the order was quashed.

6. The court did not determine whether the inspector’s decision concerning the 1.4 metre width of the footpath was erroneous in law. That issue was left for evidence at any further inquiry.

First-instance judicial review claim. The judgment itself records no prior appellate decision in the same proceedings.