Barlow (On Behalf of Harthill Against Fracking) v Secretary of State for Housing, Communities And Local Government

Procedural fairness at a planning inquiry requires that participants know the case they must meet and have a reasonable opportunity to adduce evidence and make submissions. The period required is objective and depends on the nature, volume, complexity and importance of the new evidence, the time actually available, the participant’s resources and access to expertise, and the response actually made or potentially available.

An inquiry need not be adjourned for the full period normally contemplated by the procedural rules. Where new material is limited, clearly explained, and participants can question the relevant expert and make substantive representations, fairness may be satisfied. A challenge also requires evidence of material prejudice.

The claimant, a local resident and chairman of Harthill Against Fracking, challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing INEOS Upstream Ltd’s planning appeal.

The challenge concerned the Inspector’s refusal to adjourn the inquiry for four weeks after INEOS produced an AECOM report and enhanced traffic management plan. The claimant alleged that interested parties lacked a fair opportunity to understand and answer the revised traffic proposals. The central issues were whether the Inspector’s alternative procedural measures afforded a reasonable opportunity to put the opposing case and, if not, whether material prejudice resulted.

1. The statutory challenge was dismissed. The claimant and Harthill Against Fracking had a reasonable opportunity to present their case, and there was no procedural unfairness or material prejudice.
2. Procedural fairness requires knowledge of the issues before the decision-maker and a reasonable opportunity to adduce evidence and make submissions. The relevant assessment is fact-sensitive. The court identified six considerations: the nature, volume and complexity of the evidence; its importance; the time available to understand and answer it; the participant’s resources and access to expertise; the response actually made; and what might have been said or done with more time.
3. The four-week period in rule 14 of the Appeals Rules was a normal case-management indication, not an inflexible minimum. Rules 16(12) and 16(13) permitted the Inspector to receive material during the inquiry and to adjourn where fairness required.
4. The Inspector was entitled to treat the enhanced traffic management plan as an amended option for satisfying an agreed planning condition, rather than a material change to the development proposal. He nevertheless separately considered procedural fairness. He required the traffic expert to explain the plan, allowed questions, postponed interested parties’ representations, and arranged an accompanied site visit.
5. Those measures were proportionate. The operative changes were limited and understandable, the claimant had access to the expert’s proof and the report before the inquiry, and Harthill Against Fracking made detailed submissions and questioned the expert. Its decision to rely on the Council rather than instruct its own expert did not make a longer adjournment necessary.
6. There was also no evidence of material prejudice. The claimant identified no specific additional point, evidence or expert conclusion that could have affected the result. Even assuming the opportunity had been inadequate, the evidential gap prevented any finding of material prejudice.