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

In a planning appeal conducted by written representations, procedural fairness requires participants to know the case they must meet and to have a reasonable opportunity to respond. Where late evidence changes the legal or factual basis of the appeal, the inspector should give affected interested persons an opportunity to comment before deciding the appeal. An amendment to the description of development is unlawful where it causes the appeal to be determined on a materially different basis without consultation. A decision-maker must also have regard to material planning decisions and policies relevant to the amended basis of decision-making. Substantial prejudice resulting from these failures ordinarily justifies quashing the decision.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision granting permission for works and a change of use at an adjoining property. The appeal had originally concerned a change from office use (B1) to residential use (C3).

During the appeal, the developer asserted that the property had become lawfully used for storage and distribution (B8). The local planning authority’s officers supported that position, but its Planning Applications Committee subsequently refused a separate B8-to-C3 application. The inspector received only the officers’ report, amended the description of development to B8-to-C3, and allowed the appeal without inviting the claimant to comment. The central issues were procedural fairness, the lawfulness of the amendment, and failure to consider material matters.

1. The claim succeeded. The inspector’s decision was quashed.
2. The written-representations procedure did not remove the obligation to act fairly. Applying the principle stated in Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] PTSR 1 145, an interested participant was entitled to know the case to be met and to have a reasonable opportunity to make submissions. Fairness remained context-sensitive, consistently with Vicente v Secretary of State for Communities and Local Government [2014] EWCA Civ 1555.
3. The assertion that the use had changed from B1 to B8 was first advanced in the developer’s six-week representations and was not adequately communicated to the claimant. The later correspondence of 28 May 2014, together with the officers’ report, materially changed the basis of the appeal. The inspector therefore should have informed the claimant and invited representations on both the alleged B8 use and the consequences of determining the application as a B8-to-C3 change.
4. The principle in Phillips v First Secretary of State [2003] EWHC 2415 (Admin) applied. Additional representations may be required where a new point ought to be considered and cannot fairly be considered without giving an opportunity to respond. The guidance and reasoning discussed in R (on the application of Ashley) v Secretary of State for Communities and Local Government [2012] JPL 1235 reinforced the need to address late evidence fairly.
5. Amending the description from B1-to-C3 to B8-to-C3 was not merely descriptive. It removed the apparent application of Policy CF5 and led the inspector to conclude that there was no in-principle objection to residential use. Making that amendment without consultation was unlawful.
6. The refusal of the separate B8-to-C3 application and Strategic Objective CO2 of the Core Strategy were material considerations. The inspector should have known of and considered the committee’s decision, rather than relying only on the officers’ contrary recommendation. The reasoning in London Borough of Hounslow v Secretary of State for Communities and Local Government and Mrs Krishna Deoi Kapoor [2009] EWHC 1055 (Admin) supported the need, at least, to check the outcome of a directly relevant application.
7. The claimant suffered substantial prejudice because proper representations might have affected the outcome. The developer’s asserted financial prejudice from quashing the decision did not displace the normal consequence of an unlawful decision, particularly as the developer had contributed materially to the procedural errors.

Not stated in the judgment.