Best Holdings (UK) Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

In a planning statutory review, an inspector may reach conclusions differing from the parties’ agreed position. However, procedural fairness requires the parties to know the case they must meet and to have a reasonable opportunity to make submissions and adduce evidence on a live issue. This applies where the inspector proposes to base the decision on an uncanvassed material change of use or other finding contrary to the common factual baseline. An expert tribunal remains subject to that obligation. The question is whether the party lacked a reasonable opportunity to present its case and, if so, suffered material prejudice. An agenda identifying broad issues will not necessarily provide sufficient notice of a distinct issue concerning an alleged past change of use.

The claimant sought permission for a statutory review under section 288 of the Town and Country Planning Act 1990. An inspector had dismissed its appeal against refusal of a certificate of lawful proposed use for a caravan site.

The parties had proceeded on the basis that the existing use was the use certified in a 2018 certificate. Following a site visit, the inspector found a mixed use involving caravan storage, residential occupation and waste materials, amounting to a material change of use. The claimant argued that it had not been given an opportunity to address that issue, and challenged the inspector’s alternative findings concerning the scope of the 2018 certificate.

The court considered whether there was an arguable denial of procedural fairness and material prejudice.

1. Permission granted. Permission to bring the statutory review was granted on Grounds 1 and 2. Ground 3, concerning the inspector’s alternative findings on change of character, reasons and irrationality, was academic at this stage.
2. An inspector is entitled to reach a conclusion different from one agreed by the principal parties. However, where the inspector proposes to make a finding of fact contrary to that common position, the parties must have a proper opportunity to make representations and seek to persuade the inspector.
3. The governing question is whether a party had a reasonable opportunity to present its case on a live issue and, if not, whether it suffered material prejudice. The fact that the decision-maker is an expert tribunal does not remove the requirement of fairness.
4. The parties had understood the issue to concern whether the proposed use in the application would constitute a future material change from the 2018 certificate. The inspector instead considered whether the current use had already changed from that certificate. The agenda’s reference to the lawful use of the planning unit and material change of use did not clearly notify the parties of that distinct issue.
5. The evidence disclosed a properly arguable case that the claimant had been denied the opportunity to explain the site’s use and make submissions on the inspector’s proposed factual conclusion. Permission was therefore granted on Grounds 1 and 2. The court invited submissions on the form of order for the substantive hearing.

Permission had previously been refused on the papers by Upper Tribunal Judge Elizabeth Cooke on 21 November 2022. The present court granted permission for the section 288 review on Grounds 1 and 2.