Forster v Secretary of State for Communities And Local Government

In a planning appeal, an inspector may rely substantially on uncontested expert evidence, but must exercise an independent planning judgment on the issues before him. Procedural fairness generally requires that a party knows the case to be met and has a reasonable opportunity to answer it. Planning conditions must be read benevolently and in context. A condition may lawfully secure noise mitigation through prior approval, implementation, testing and retention. The inspector’s planning remit does not require him to predict future nuisance, licensing or other proceedings against an established business.

The claimant, owner of the George Tavern, challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing appeals against refusal of planning permission, conservation area consent and listed building consent for redevelopment of an adjoining former nightclub.

She argued that the inspector had misunderstood or inadequately assessed noise evidence, acted unfairly by refusing late expert evidence, failed to consider the deliverability of noise mitigation, imposed an ineffective condition, and failed to consider harm to the tavern’s business and the effects of construction on the listed building.

1. The application was dismissed. The inspector was entitled to rely on RBA Acoustics’ evidence, particularly where the relevant measurements and targets had not been challenged. He nevertheless exercised his own judgment on the noise issues. The decision letter, read fairly as a whole, showed that he understood the principal controversy and reached his own planning conclusions (paras [37]–[50]).
2. The refusal to admit further expert evidence was not procedurally unfair. The claimant knew the case to be met, had been notified of the six-week timetable, and had a reasonable opportunity to obtain expert advice and make representations. The written-representations procedure was not inherently unfair (paras [52]–[60]).
3. Condition 9 was legally adequate. Read benevolently and in context, it prevented construction until an adequate noise-protection scheme was approved, implemented and tested, and prevented occupation until suitable insulation had been achieved. The inspector was entitled to leave the precise technical solution for later approval (paras [61]–[75]).
4. The inspector was not required to anticipate future nuisance claims, licensing action or abatement proceedings. His task was to assess the relevant planning issues, principally whether future residents would suffer unreasonable noise. He also considered daylight, sunlight and construction effects on the listed building (paras [76]–[86]).

First-instance judicial review challenge under section 288 of the Town and Country Planning Act 1990. The inspector’s decision allowing the appeals was upheld.