Michael Wallis, R (on the application of) v Secretary State for the Environment, Food and Rural Affairs

A statutory coastal-access objection procedure is not inherently procedurally unfair merely because the objector has no formal statutory right to reply to the promoting authority’s comments. Fairness depends on the procedure as a whole and the opportunities actually given to make representations.

A hearing or inquiry is not required whenever a landowner wishes to respond. Written representations may be appropriate where the issues are clear and oral testing or clarification is unnecessary. A challenge to reasons must be assessed fairly in the context of the material before the decision-maker, and substantial prejudice must be shown.

The claimant sought permission to judicially review the Secretary of State’s determination under section 52 of the National Parks and Access to the Countryside Act 1949, approving Natural England’s coastal-access proposals across his farmland.

He alleged procedural unfairness because he had not been given a formal opportunity to reply to Natural England’s comments on his objection. He also challenged Planning Inspectorate guidance concerning the choice between written representations, a hearing and an inquiry, and alleged that the approval notice gave inadequate reasons.

Permission had previously been refused on the papers. The renewed application concerned whether either ground was arguable.

1. Permission refused. The claimant had no realistic prospect of establishing procedural unfairness or inadequate reasons.
2. The procedure under Schedule 1A to the National Parks and Access to the Countryside Act 1949, supplemented by the Coastal Access Reports (Consideration and Modification Procedure) (England) Regulations 2010, adopts a sequential structure. Natural England publishes its proposals, affected landowners object, Natural England comments, and the inspector and Secretary of State consider the material before making a determination. That structure is not inherently unfair at common law or under article 6 ECHR. Fairness does not require a formal statutory right to reply to Natural England’s comments.
3. The Planning Inspectorate guidance does not state that further comments are impermissible within a written-representations procedure. Nor does fairness require a hearing or inquiry whenever a landowner wishes to respond, regardless of the complexity of the issues.
4. On the facts, the claimant had substantial opportunities to make representations. He had received Natural England’s comments, was later expressly invited to provide further comments, and was on notice that the inspector might proceed without another opportunity. He also declined further participation in discussions and a proposed site visit. The matters said to be new had either been raised previously or could have been addressed in further representations. The lengthy procedure also afforded sufficient time to obtain expert evidence.
5. The reasons challenge was unarguable. The notice had to be read with the material before the Secretary of State, including Natural England’s proposal, comments and habitat assessment. On a fair reading, the Secretary of State adopted the inspector’s reasoning, and there was no genuine doubt about the decision on the principal controversial issues. The standard in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 was met. In any event, substantial prejudice had not been shown, and section 31(3C)–(3D) of the Senior Courts Act 1981 applied because the outcome was highly unlikely to have been substantially different.
6. The earlier costs order was confirmed.

High Court (Planning Court): permission had been refused on the papers by Sir Peter Lane on 25 September 2024. On renewal, Lang J refused permission and confirmed the costs order.