Anderson v Secretary of State for Communities and Local Government & Ors

In a planning inquiry, procedural fairness requires a participant to know the case to be met and to have a reasonable opportunity to adduce evidence and make submissions. The inspector may control evidence and exclude material that is irrelevant, repetitious, or unfairly introduced, provided the participant’s essential case can still be presented. A procedural breach does not invalidate the decision unless it causes material prejudice or unfairness. In assessing works required for reservoir safety, substantial heritage harm must receive considerable weight, but the decision-maker may rely on the statutory safety assessment of the properly qualified panel engineer. An alternative scheme that is embryonic, rejected by the panel engineer, and withdrawn by its proponent may lack materiality.

The claimant challenged the Secretary of State’s decision allowing Yorkshire Water’s appeal against Kirklees Metropolitan Borough Council’s refusal of planning permission and listed building consent for works to the Grade II listed spillway at Butterley Reservoir. The challenge was brought under section 288 of the Town and Country Planning Act 1990 and section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The claimant alleged that the inquiry was unfair because an appendix containing an alternative engineering scheme was excluded, he was not properly notified, and an accompanied site inspection occurred before the inquiry. The central issues were whether the alternative scheme was a material consideration and whether the alleged procedural breaches caused unfairness or material prejudice.

1. Claim dismissed. The Inspector’s decision was not quashed.
2. The Inspector had not closed her mind to alternative schemes. She considered the proposed scheme on its merits and treated alternatives as relevant insofar as they bore on whether the approved works were necessary.
3. The exclusion of the appendix was within the Inspector’s discretion under rule 16 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000. The claimant was allowed to present the essential features of his alternative in section C of his proof and to cross-examine the reservoir panel engineer about it. The alternative was embryonic, was rejected by that engineer, and was withdrawn by the claimant in cross-examination. There was no realistic possibility that the appendix would have changed the result.
4. Following Hopkins v Secretary of State [2014] JPL 1000, procedural fairness required a reasonable opportunity to present the case, but did not prevent reasonable control of evidence or require an inspector to admit material introduced unfairly or too late.
5. The email notification was sufficient compliance with rule 4(4), since the claimant had himself objected by email. Even if there had been a breach, six weeks’ notice and the opportunity to give evidence meant that no material prejudice or unfairness resulted.
6. The accompanied inspection breached rules 17(2) and 17(3), because it occurred before the inquiry. That breach did not affect the fairness or outcome of the inquiry.
7. The Inspector was entitled, as a matter of planning judgment, to conclude that the proposed works virtually eliminated the risk of dam failure and that no alternative had been shown to be equally safe. The heritage considerations were properly addressed, including the considerable weight required by Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ 137.