San Vicente & Anor v Secretary of State for Communities & Local Government & Anor

An informal planning hearing must be conducted fairly for every person statutorily entitled to appear. Where entitled objectors were not notified and the hearing was therefore conducted in their absence, a resumed hearing should ordinarily be genuinely de novo and should not depend on evidence given at the defective hearing. The use of the same inspector does not automatically establish unfairness, but it may create a real risk that the second hearing is not, or does not appear to be, fresh and impartial. Relief under section 288 requires more than procedural error: the unfairness must have caused prejudice, in the sense that a different outcome is reasonably possible after a proper rehearing. The planning decision was quashed and the appeal was to be reheard by a new inspector.

The claimants were objectors to a residential development in Essex. They challenged, under section 288 of the Town and Country Planning Act, the Secretary of State’s inspector’s decision allowing the developer’s planning appeal.

The claim concerned a procedural failure. Written objectors had not been notified of the informal hearing and none attended the first hearing. A resumed hearing was later held before the same inspector, who had regard to both hearings. The central issues were whether the resumed process was unfair and whether any unfairness caused sufficient prejudice to justify quashing the decision.

1. Outcome. The claim succeeded. The inspector’s decision was quashed. The planning appeal was to be reheard by a new inspector as a completely fresh hearing.
2. Written objectors were statutorily entitled to notification, attendance and an opportunity to make representations. The failure to notify them was a serious procedural defect. An informal hearing is inquisitorial and less formal than an inquiry, but the inspector must still ensure fairness to all entitled participants.
3. Once the defect was discovered, the hearing had to be rerun in a manner which did not rely on oral evidence given without the objectors being present, unless that evidence was fully disclosed and the objectors had a proper opportunity to address it. The court considered that the planning inspectorate should seriously reconsider using the same inspector in such circumstances. The same inspector did not, however, automatically make the resumed hearing unlawful.
4. The court applied the principle that justice must be manifestly seen to be done. There was both an appearance of unfairness and material supporting actual unfairness. The second hearing was substantially shorter, the inspector had regard to the earlier hearing, and the objectors’ concerns about housing supply, alternative sites and the quality of agricultural land might have been dealt with differently had they participated from the outset.
5. Procedural unfairness alone did not require relief. The relevant question was whether it was reasonably possible that a proper de novo hearing could produce a different result. That possibility existed. The inspector’s decision was therefore quashed, with the resumed appeal to be determined afresh. Costs were deferred pending the Court of Appeal’s decision on costs.

The judgment describes a statutory appeal under section 288 of the Town and Country Planning Act against an inspector’s decision allowing a planning appeal. No lower-court judgment or citation is stated.