Garlick, R (on the application of) v Secretary of State for Council Local Government

In a planning appeal conducted by written representations, an inspector may determine the proposal by reference to development-plan policies not relied on in the local planning authority’s refusal, provided the reasoning is intelligible and the parties could reasonably have anticipated the issues. Procedural fairness requires an opportunity to address a genuinely new and potentially decisive issue. It does not require an inspector to invite further submissions on issues already raised, or which competent parties should reasonably have identified from the evidence and applicable policies. A decision will not be quashed for a minor defect in wording where the reasoning discloses no material legal error or prejudice.

The claimant sought retrospective planning permission for the independent residential use of a converted garage and workshop which had previously been used as ancillary accommodation to a dwelling in the open countryside. The local planning authority refused permission by reference to policy BD6 of the North Wiltshire Local Plan. On appeal under section 78 of the Town and Country Planning Act 1990, the Inspector dismissed the appeal, relying principally on policies H4 and C3, and awarded partial costs.

The claimant challenged the decision under section 288 of the 1990 Act, alleging inadequate reasons and procedural unfairness because policies H4 and C3 had not been the principal focus of the parties’ representations. The central questions were whether the Inspector had misapplied the development plan and whether the claimant had been denied a fair opportunity to address decisive issues.

1. Claim dismissed. The Inspector’s decision was not inadequately reasoned. Reasons need not address every matter at great length, but must not create substantial doubt that the decision-maker misunderstood a relevant policy or reached an irrational conclusion.
2. On a proper interpretation, policies H4 and C3 were relevant and together formed critical parts of the development-plan framework. Policy H4 applied to the proposed separate dwelling, notwithstanding that the physical building had already been converted. Policy C3 was also engaged because an independent dwelling in the countryside could generate more traffic and be less sustainable than ancillary accommodation. The claimant’s own representations and the County Highway Authority’s objection supplied sufficient factual material for that conclusion.
3. The Inspector’s wording indicating agreement was unfortunate because it did not identify the person or material with whom she agreed. It was nevertheless a minor defect which did not render the reasoning unintelligible or establish prejudice.
4. There was no procedural unfairness. Policy H4 had been raised in third-party representations and the claimant had responded to it. Policy C3 had been identified in the officer’s report, and the sustainability issue had been raised by the highway authority. The claimant could reasonably have anticipated that both policies might be material and had failed to address the obvious issues in its written representations.
5. Ball v Secretary of State for the Environment Transport and the Regions [2000] PLCR 299, R (Poole) v Secretary of State for Communities and Local Government [2008] EWHC 676 (Admin), and R (Gates Hydraulics Ltd) v Secretary of State for Communities and Local Government [2009] EWHC 2187 (Admin) were distinguishable because the present issues were raised or reasonably foreseeable, and did not involve the same unexpected or technically substantial matters. The approach in Castleford Homes v Secretary of State for the Environment [2001] EWHC (Admin) 77 supported the conclusion that the claimant had received a fair opportunity to present its case.
6. The claim failed on both grounds. The Secretary of State was awarded costs in the sum claimed.