Engbers v Secretary of State for Communities and Local Government & Anor

An inspector determining a planning appeal must identify significant issues which may affect the outcome and give the parties a reasonable opportunity to address them. This duty is highly sensitive to context. A general statement that highway safety is a main issue does not alert an appellant that the inspector may reject a pedestrian-access design on technical visibility grounds where the parties have agreed that detailed design can be resolved by condition. A site visit cannot be used to introduce and determine issues which have not been raised in the inquiry or written representations. Departure from an agreed statement of common ground without giving the parties an opportunity to respond may make the decision procedurally unfair.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of an appeal against refusal of outline planning permission for up to 110 dwellings. The proposed development included a pedestrian route along Reading Road and a crossing near the Shiplake War Memorial Island.

The claimant and the local planning and highway authorities had agreed that there were no unresolved highway matters and that the crossing’s detailed design, including possible adjustments to visibility splays or location, could be controlled by condition. The inspector nevertheless dismissed the appeal on highway safety grounds based on visibility and stopping sight-distance concerns which had not been raised with the parties. The central issues were whether that approach was procedurally unfair and whether the inspector had failed to consider or raise the possibility of a Grampian condition.

1. The claim succeeded. Grounds 1 and 2 were upheld and the inspector’s decision was quashed.
2. Procedural fairness required the claimant to know the case to be met and to have a reasonable opportunity to adduce evidence and make submissions. The principles in Hopkins Development Ltd v Secretary of State for Communities and Local Government [2014] PTSR 1145 applied. The inquiry rules assisted that process but were not a complete code.
3. The rule 7 statement’s general reference to highway safety did not identify the specific visibility issue on which the appeal was dismissed. Nor did the third-party representations, the inspector’s questions, the claimant’s attendance by a highway expert, or the site visit provide sufficient notice that the inspector intended to depart from the agreed position.
4. The inspector’s reasoning depended on three matters which had not been raised: measured traffic speeds near the crossing; the visibility envelope required for those speeds; and whether sufficient land or control existed to secure the design or an alternative crossing by condition. The inspector instead relied on general observations and speed data relating to a different site access.
5. The site visit was for examining matters already described and discussed. It was not an opportunity to raise new issues or obtain further evidence. The inspector was also required to address the agreed position that the detailed crossing design could be controlled by an appropriately worded Grampian condition. His failure to raise that issue separately was procedurally unfair.
6. The highway-safety conclusion was decisive. The Secretary of State accepted that, if the challenge succeeded, the decision had to be quashed. Permission to appeal was refused because the principles were established and the case raised no broader question of principle.

The judgment records no prior judicial decision in the same proceedings. The claimant challenged the Secretary of State’s inspector’s decision under section 288 of the Town and Country Planning Act 1990. The High Court allowed the challenge, quashed the decision and refused permission to appeal.