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

Procedural fairness at a planning inquiry requires a party to know the material case it must meet and to have a reasonable opportunity to adduce evidence and make submissions. A breach warrants quashing only where it materially prejudices that party.

A rule 7 or rule 16 statement identifies the Inspector’s preliminary view of the main issues. It assists focus but does not confine the inquiry or require updates as evidence develops. Issues raised by third parties remain live unless the Inspector expressly removes them. A party which has the opportunity to address such an issue cannot complain of unfairness merely because it was not initially identified as a main issue.

Hopkins sought outline planning permission for 58 dwellings at Wincanton. The local planning authority refused permission, and Hopkins appealed under section 78 of the Town and Country Planning Act 1990.

Before and during the inquiry, the Inspector identified main issues in rule 7 and rule 16 statements. Her eventual decision also relied on the sustainability of the site and its effect on the character and appearance of the area. Hopkins contended that neither issue had been identified as a main issue and that it had therefore been denied procedural fairness.

The High Court quashed the Inspector’s decision on that ground: Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2013] EWHC 1783 (Admin). The Secretary of State appealed. The central question was whether an Inspector may rely on live issues not identified in earlier rule 7 or rule 16 statements where the parties had an opportunity to address them.

1. Appeal allowed. The High Court’s order quashing the Inspector’s decision on ground 1 was set aside. The case was remitted to the High Court to determine Hopkins’s remaining grounds of challenge.
2. Procedural fairness required Hopkins to know the case it had to meet and to have a reasonable opportunity to adduce evidence and make submissions. A decision may be quashed under section 288 of the Town and Country Planning Act 1990 where unfairness materially prejudices a party. The court treated this as the modern expression of the natural-justice principle illustrated by Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255.
3. The Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 provide a framework for a focused inquiry. A rule 7 or rule 16 statement identifies the Inspector’s view of the main issues at that time. It does not prevent consideration of other live issues, nor require the Inspector to give regular updates of developing views. Significant issues raised by third parties must be addressed by the main parties unless the Inspector states otherwise. Where a party departs from an agreed rule 15 statement of common ground, the Inspector must give the other party a reasonable opportunity to deal with the resulting issue.
4. Sustainability was a live issue. It was addressed in evidence, the Council’s opening and closing cases, and third-party evidence. Hopkins knew, or ought to have known, that it had to meet that case and had a reasonable opportunity to do so.
5. Character and appearance were also live issues through third-party objections. The statement of common ground did not remove that issue, and Hopkins could make submissions upon it. Its absence from the earlier main-issue statements did not create unfairness. The aesthetic character of an issue may affect practical prejudice in a particular case, but creates no separate rule of law.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal in [2014] EWCA Civ 470, set aside the High Court order on ground 1, and remitted the remaining grounds of challenge.
• High Court, Queen’s Bench Division, Administrative Court: Quashed the Inspector’s decision on the basis of procedural unfairness: Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2013] EWHC 1783 (Admin).
• Planning inquiry: The Inspector dismissed Hopkins’s section 78 appeal against the refusal of planning permission.