Secretary of State for Communities and Local Government v Hopkins Developments Ltd

Procedural fairness at a planning inquiry requires knowledge of the opposing case and a reasonable opportunity to answer it through evidence and submissions. An inspector’s identification of the main issues focuses the inquiry but does not confine its scope or require regular updates on the inspector’s thinking. Significant issues raised by third parties remain matters which the main parties should address unless the inspector expressly states otherwise. A party which knowingly declines an available opportunity to address a live issue cannot establish procedural unfairness merely because that issue subsequently influences the decision. Where a main party departs from an agreed statement of common ground, the other party must receive a reasonable opportunity to respond.

Hopkins Developments Ltd applied to Somerset District Council, the local planning authority, for outline permission to build 58 dwellings near Wincanton Community Hospital. Following the Council’s refusal, Hopkins appealed to the Secretary of State for Communities and Local Government. An appointed inspector dismissed that appeal after considering housing supply, the development’s effect on the area’s character and appearance, its sustainability, and highway safety and hospital access.

Hopkins challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990. His Honour Judge Denyer QC determined its procedural fairness ground as a preliminary issue. He quashed the decision because the inspector had relied on sustainability and character and appearance without identifying them as main issues or subsequently warning the parties: [2013] EWHC 1783 (Admin).

The Secretary of State appealed. The central issue was whether reliance on matters debated in the evidence, but omitted from the inspector’s identification of the main issues, deprived Hopkins of a reasonable opportunity to address the case against its proposal.

The appeal was allowed unanimously. The order quashing the inspector’s decision on Hopkins’ first ground of challenge was set aside. Jackson and Beatson LJJ delivered reasoned judgments, and Christopher Clarke LJ agreed with both.

1. Procedural fairness required a participant to know the opposing case and have a reasonable opportunity to answer it through evidence and submissions. The content of that requirement depended on the context and circumstances. The inquiry was whether Hopkins had that opportunity, rather than whether the inspector had formally identified every potentially decisive issue ([47], [62], [85]–[90]).

2. The inquiry rules provided a framework for focused and efficient proceedings, rather than a complete code of fairness. Statements under rules 7 and 16 identified the inspector’s assessment of the main issues when made. They neither confined the inquiry to those issues nor required continuing announcements of changes in the inspector’s thinking. Rules 16(3) and 16(12) permitted other relevant issues and disclosed evidence to be considered. Rule 18 separately required notification and an opportunity to respond to material new evidence or factual matters arising after the inquiry ([61]–[62], [95]–[96]).

3. Sustainability was a live issue supported by extensive evidence and the Council’s opening and closing submissions. Character and appearance had been raised by third-party objectors. Neither issue had been excluded by the statement of common ground. Hopkins knew, or ought to have known, that those matters required an answer and had a reasonable opportunity to provide one. Its decision to leave the evidence unchallenged did not establish unfairness ([65]–[75], [89], [93], [97]).

4. The focused nature of modern inquiries remained relevant to fairness. Where a main party departed from an agreed position, the other party required a reasonable opportunity to respond. Castleford Homes Ltd v Secretary of State for Environment, Transport and the Regions and R (Poole) v Secretary of State for Communities and Local Government involved materially different circumstances. By contrast, R (Tatham Homes Ltd) v First Secretary of State demonstrated the need to address significant objections raised by residents ([52]–[58], [62], [74], [90]–[93]).

5. The aesthetic nature of an issue could affect prejudice on particular facts, but supplied no general legal rule diminishing the importance of an opportunity to respond. Beatson LJ emphasised that evidence and advocacy could effectively address matters of planning judgment ([60], [76], [94]).

The Secretary of State’s third ground, concerning discretion to refuse quashing despite unfairness, did not arise. The remaining grounds of Hopkins’ challenge were remitted to the judge. Neither party could recover the costs of preparing its non-compliant skeleton argument ([16]–[17], [77], [80], [98]).

1. Court of Appeal (Civil Division): [2014] EWCA Civ 470 . Allowed the Secretary of State’s appeal, set aside the order on Hopkins’ procedural fairness ground, and remitted the remaining grounds to the judge.
2. High Court, Administrative Court: Hopkins Developments Ltd v Secretary of State for Communities and Local Government, [2013] EWHC 1783 (Admin) . His Honour Judge Denyer QC determined the first ground as a preliminary issue and quashed the inspector’s decision for procedural unfairness.
3. Planning appeal: An inspector appointed by the Secretary of State dismissed Hopkins’ appeal under section 78 of the Town and Country Planning Act 1990 against the Council’s refusal of outline planning permission.