Ashley, R (on the application of) v Secretary of State for Communities and Local Government & Ors

In a written-representation planning appeal, natural justice may require the Planning Inspectorate to ensure that an interested person has notice of, and a fair opportunity to answer, late expert evidence on a central issue. Whether that obligation arises is fact-sensitive. It may arise where the objector has actively participated, has been told that the submission period has ended, and could not reasonably anticipate significant new evidence.

An objector cannot fairly be expected to inspect the planning authority’s file after an express final deadline merely to discover whether new material has been lodged. A negative environmental impact assessment screening direction may nevertheless be adequate where the supporting material, including a completed checklist, gives sufficient substantive reasons for the decision.

Taylor Wimpey obtained planning permission on appeal for 43 dwellings and associated works at the former Montbelle School site. The local planning authority had refused permission partly because vehicle movements beside 136 Domonic Drive might cause unacceptable noise and disturbance.

During the written-representation appeal, Taylor Wimpey lodged an acoustic expert report on the stated final submission date. The Inspector relied on that report and on the absence of contrary evidence when allowing the planning appeal. Mr Ashley, acting for a residents’ association, had not been sent the report and believed that no further representations could be made after the deadline.

The Administrative Court dismissed his application to quash the permission. He appealed on two grounds: breach of natural justice through the handling of the late acoustic evidence, and inadequacy of the environmental impact assessment screening direction.

Decision

The court unanimously allowed the appeal on the natural-justice ground, quashed the planning permission, and rejected the environmental-impact-assessment ground.

1. Fair opportunity to respond. The late acoustic report was substantial evidence on a central issue. It was filed without warning on the last day which interested persons had been told was the final date for submissions. The Inspector then relied on it because there was no contrary evidence. In that combination of circumstances, the appellant had not received a fair opportunity to meet the case against him.

2. No duty to make speculative post-deadline enquiries. The appellant had actively participated in the process. Nothing reasonably alerted him to the likelihood of significant expert evidence being filed at the deadline. It was unfair to treat him as obliged to inspect the council’s file after that date and seek permission to respond. The Planning Inspectorate, and ultimately the Inspector, had to satisfy themselves that an interested party had notice of such late evidence and an adequate opportunity to comment before determining the appeal by written representations.

3. Guidance and procedure. The published guidance did not cure the unfairness. Its treatment of the final date and late material positively discouraged further action by interested persons. The court observed that the guidance should be reviewed for clarity. The court did not need finally to decide whether the written-representation procedure had become inappropriate once controversial expert evidence was filed.

4. Screening direction. The project fell within paragraph 10(b) of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, so a screening decision was required. The negative direction was adequately reasoned. The completed checklist gave substantive answers, and the conclusion could properly have been stated briefly. That ground had no merit.

• Court of Appeal (Civil Division) — Allowed the appeal and quashed the planning permission: [2012] EWCA Civ 559.
• Administrative Court — Mr Robin Purchas QC, sitting as a deputy High Court judge, dismissed the claimant’s application to quash the Inspector’s decision on 29 March 2011.