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

At a planning inquiry, agreement between the developer and public authorities does not prevent an inspector from deciding an issue differently where third parties have raised it. Procedural fairness is satisfied if the developer ought reasonably to appreciate the issue and its potential significance from the representations, the inspector’s identification of the main issues and the conduct of the inquiry.

An inspector conducting a formal, adversarial inquiry need not repair deficiencies in a party’s evidence, provide continuing updates about provisional thinking or warn that one witness’s evidence may be rejected. A site inspection following the inquiry informs the inspector’s understanding of evidence already given; it is not an occasion for new evidence.

A planning inspector refused outline permission for 110 dwellings because the development’s proposed pedestrian route would have a severe adverse effect on highway safety. Although the developer, local planning authority and highway authority had agreed the route in principle, local residents and the parish council maintained that the proposed crossing was dangerous.

Holgate J quashed the decision in [2015] EWHC 3541 (Admin). He held that the inquiry had been procedurally unfair and that the inspector had failed properly to address whether a condition could overcome the safety concern. The Secretary of State appealed. The issues were whether the developer had received adequate notice of the highway-safety issue and whether the appeal encompassed the separate ground concerning a Grampian condition and adequacy of reasons.

1. Appeal dismissed. The Secretary of State succeeded on the procedural-fairness issue argued before the Court of Appeal. The High Court’s quashing order nevertheless stood because the separate ground concerning a Grampian condition and adequacy of reasons had not been appealed.

2. The agreement between the developer and the planning and highway authorities did not prevent local residents from disputing the safety of the proposed crossing. An inspector is duty bound to consider a material issue raised by a third party. The question was whether the third-party representations, together with the inspector’s statements, questions and conduct, meant that the developer ought reasonably to have appreciated the issue and its significance.

3. The developer had sufficient notice. The inspector identified highway safety as a main issue before and at the inquiry, despite the authorities’ agreement that no highway matters remained unresolved. Against the background of the residents’ representations, this indicated a real possibility that the inspector might depart from the agreed position. Questions about traffic speed, visibility and the crossing were raised publicly, and the inspector requested attendance by the developer’s highway witness. The safety issue therefore did not arise unexpectedly.

4. In the formal and adversarial setting of an inquiry, the inspector was not required to help a party remedy gaps in its evidence. Nor was he required to give continuing updates about his thinking or advance notice that he might reject one party’s evidence. The decision letter was the proper place to explain his factual conclusions. A post-inquiry site inspection was intended to assist his appreciation of the evidence, not to receive further evidence.

5. The challenge concerning a Grampian condition was distinct from the procedural-fairness challenge. It also alleged inadequate reasons. The grounds of appeal did not challenge the High Court’s conclusion on that separate basis. It was too late to introduce the issue during argument or to reopen the decision after circulation of the draft judgments. The Secretary of State was to decide the future handling of the planning appeal under rule 20 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000.

1. Court of Appeal (Civil Division): In [2016] EWCA Civ 1183, the court rejected the finding of procedural unfairness but dismissed the appeal because the independent ground concerning a Grampian condition and adequacy of reasons had not been appealed. The High Court’s quashing order therefore stood.

2. High Court, Administrative Court, Planning Court: Holgate J, in [2015] EWHC 3541 (Admin), quashed the inspector’s decision after upholding both the procedural-fairness challenge and the challenge concerning consideration of a Grampian condition.