PNH (Properties) Ltd v Secretary of State for Communities and Local Government

In a challenge under Town and Country Planning Act 1990, an inspector may give little weight to a planning obligation where it binds one area of land but requires works on another area that it does not bind. The obligation may therefore provide no reliable guarantee that mitigation will be delivered if ownership of the areas diverges.

Procedural fairness requires an inspector to give a party an opportunity to address a genuinely new issue which could not reasonably have been anticipated. It does not require the inspector to identify defects in material voluntarily submitted by the party, particularly where the issue was central to the party’s own case. A previous planning decision is a material consideration, but a later inspector need not treat it as determinative. Any departure must be explained.

The claimant sought an order under section 288 of the Town and Country Planning Act 1990 quashing an inspector’s decision dismissing its section 78 appeal against refusal of outline planning permission for two houses in woodland at Bishop’s Drive, East Harnham, Salisbury.

The claimant relied on a section 106 planning obligation concerning woodland management, alleged procedural unfairness in the conduct of the hearing, and failure to give proper weight or reasons in relation to an earlier 2009 appeal decision concerning similar development on the land. The central issues were whether the obligation secured the proposed mitigation, whether the hearing was fair, and whether the inspector had lawfully addressed the earlier decision.

1. The application was dismissed. The inspector’s decision was not unlawful and the grounds of challenge were not made out.
2. The planning obligation was expressed to bind only the red land, comprising the appeal site. It required woodland management activities on the blue land, which was outside the obligation. If the blue land were sold separately, the local planning authority could not enforce the obligation against the successor in title to that land. The inspector was therefore entitled to conclude that the obligation gave no guarantee that the mitigation measures would be accomplished, although his reasoning was not well expressed (paras 16–23).
3. The additional argument that clause 2 was defective had force, but it was unnecessary to decide that issue because the first ground failed on the separate basis concerning the land to which the obligation applied (para 23).
4. Fairness in a hearing requires an opportunity to address a genuinely new issue which the party did not know, and could not reasonably have known, was in issue. Here, the adequacy and enforceability of the planning obligation were central to the claimant’s own case that woodland management would outweigh any planning harm. The inspector was not required to invite the claimant to repair the defects in the obligation it had submitted (paras 24–28).
5. In any event, the inspector’s conclusion that the development conflicted with Policy H19 rested on the unacceptable effect on the relationship between the woodland and Bishop’s Drive, and on the view that woodland management could be achieved without the development. It did not depend on the enforceability point concerning views from Old Blandford Road (para 28).
6. Complaints about the conduct of the hearing and site visit did not establish procedural unfairness. The court stressed the need to distinguish objectively established facts from a party’s comments or impressions about an inspector’s conduct (paras 29–34).
7. The inspector had considered the 2009 appeal decision and the claimant’s attempt to address its concerns. He had not contradicted or departed from it. Even if there had been a departure, he had explained why the present proposal was detrimental to the area, namely because it would divorce the woodland from the street scene (paras 35–42).