Hopkins Development Ltd v Secretary of State for Communities and Local Government & Anor

In a planning inquiry, procedural fairness requires an inspector to give parties a reasonable opportunity to address an issue that is materially relied on and may determine the outcome, particularly where the principal parties have treated the issue as resolved in a statement of common ground. Parties are not required to prepare evidence on every conceivable line of reasoning. The position of third parties and the reasonable foreseeability of the issue remain relevant. An inspector need not disclose provisional views generally, but fairness requires notice and an opportunity to respond where the inspector adopts an unexplored line that the affected party could not reasonably have anticipated. Failure to do so may justify quashing the decision.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of its appeal against refusal of outline planning permission for residential development. By the time of the inquiry, a statement of common ground had reduced the live issues principally to housing land supply and highway safety. The inspector identified those matters before the inquiry, but later relied materially on the proposal’s effect on character and appearance and on the site’s sustainability. Those matters had not been identified as significant issues and the claimant had not been given an opportunity to address them. The central issue was whether that process breached natural justice.

1. The claim succeeded and the inspector’s decision was quashed. The inspector had relied on the effect of the development on character and appearance and on the sustainability of the location without notifying the parties that those matters had become significant issues or giving the claimant a proper opportunity to respond.

2. The modern planning inquiry is deliberately focused. The Rules and procedural guidance encourage the principal parties to concentrate evidence and submissions on matters genuinely in dispute. A party may reasonably rely on matters apparently resolved in a statement of common ground. An inspector who intends to depart from that position may need to permit an adjournment so that the disputed issue can be addressed, including by expert evidence where appropriate. This approach was drawn from Poole v Secretary of State [2008] EWHC 676 (Admin).

3. Fairness is fact-sensitive. Third-party objectors are not bound by the statement of common ground, and parties may be expected to address matters that they ought reasonably to have appreciated were material. There is no general requirement for an inspector to disclose provisional thinking. However, where the inspector takes an unexplored line which the affected party could not reasonably have anticipated, fairness requires an opportunity to deal with it. The court also treated the reasoning in Castleford Homes [2001] EWHC 77 (Admin), Tatham [2005] EWHC 3538 (Admin) and Gates Hydraulics [2009] EWHC 2187 (Admin) as relevant guidance.

4. On the facts, the agreed position and the inquiry materials did not reasonably put the claimant on notice that character, appearance and sustainability would be relied on decisively. The failure to provide a fair opportunity to meet those issues amounted to a breach of natural justice.

This was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990. The Secretary of State’s inspector had dismissed the planning appeal in a decision letter dated 29 August 2012. The High Court quashed that decision.