Eley v Secretary of State for Communities and Local Government & Ors

In a planning appeal conducted by written representations, fairness does not ordinarily impose a general duty on the appellant to disclose adverse factual material or opinions. A duty may arise where the appellant has voluntarily disclosed material but withholds further information so that the inspector may be misled about its true effect.

An inspector may disregard information submitted after the nine-week period under the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000, subject to review for unreasonableness or irrationality. A mistake of established fact giving rise to unfairness is a distinct ground of challenge under section 288 of the Town and Country Planning Act 1990, but the mistake must have played a material part in the decision. A failure to disclose does not justify quashing where the decision would inevitably have been the same.

The claimant challenged an inspector’s decision allowing a planning appeal and granting permission for 11 dwellings. The challenge was brought under section 288 of the Town and Country Planning Act 1990.

She alleged that the developer had failed to disclose later badger survey information and had failed to disclose an option over, and ownership of, adjoining land. She argued that these failures caused procedural unfairness or led the inspector to decide the appeal on the basis of material mistakes of fact. The central issues were whether disclosure was required under the written representations procedure and, if so, whether the alleged failures materially affected the decision.

1. Claim dismissed. The inspector’s decision allowing the planning appeal was not quashed.
2. In an appeal conducted under the written representations procedure, there was no general obligation requiring an appellant to disclose every document or item of factual information adverse to its case. The statutory scheme gave the local planning authority and the inspector substantial powers to obtain relevant information, including by requesting further information and surveying the site.
3. Fairness could nevertheless require disclosure in particular circumstances. Where an appellant voluntarily disclosed factual material, it could not selectively withhold further material if doing so risked misleading the inspector about the true nature or effect of what had been disclosed. The principle in Birds Eye Walls Limited v Harrison [1985] I.C.R 278 was applicable by analogy.
4. The later badger information should have been disclosed, but its non-disclosure did not cause procedural unfairness. The local planning authority had received the information and could have invited the inspector to consider it. The inspector later received the same material and consciously declined to consider it because it was late. Regulation 7(8) conferred a broad discretion to disregard late information, reviewable only on conventional public-law grounds.
5. A mistake of established fact giving rise to unfairness constituted a distinct ground of challenge under section 288. The requirements identified in E and another v Secretary of State for the Home Department [2004] QB 1044 included an existing fact or evidence, objectively verifiable and established, for which the claimant was not responsible, and which played a material part in the reasoning. Those requirements were not met here.
6. The failure to disclose the option and ownership of adjoining land was potentially relevant, but it did not affect the result. There was no evidential basis for concluding that the additional land could accommodate the number of dwellings needed to trigger affordable-housing requirements. Nor was there a formulated development scheme capable of making an environmental impact assessment necessary or of establishing material additional wildlife effects.
7. The principle in R Swale BC ex parte RSPB [1991] 1 PLR 6, concerning piecemeal development intended to avoid environmental impact assessment requirements, did not assist on these facts. No larger development scheme had been formulated or made public.
8. Even if the inspector’s lack of knowledge were treated as a mistake of fact, the evidence did not show that it materially influenced the decision. In any event, the badger sett had subsequently been removed in accordance with proper procedures, so quashing would serve no useful purpose.

First-instance judicial review claim under section 288 of the Town and Country Planning Act 1990. The judgment does not state any prior appellate decision.