Save the Fox and Hounds Campaign Ltd v Secretary of State for Housing, Communities and Local Government & Ors

Under section 319A of the Town and Country Planning Act 1990, the choice between written representations, a hearing and an inquiry is a matter of planning judgment for the Planning Inspectorate and Inspector, subject to Wednesbury review. Local interest and disputed evidence are relevant, but neither automatically requires an oral procedure.

There is no general common-law duty to give reasons for maintaining a written-representations procedure. Such a duty could arise only in compelling circumstances supported by particularly strong legal or policy reasons. An Inspector need not refer expressly to every submission or evidential point where the decision, read with material reports incorporated by reference, shows that the matter was considered.

The claimant sought statutory review of an Inspector’s decision allowing an appeal against refusal of planning permission for the conversion of a closed public house into two dwellings. The challenge concerned the continued use of written representations and alleged failure to consider evidence bearing on the pub’s viability, including offers to purchase it as a going concern.

The Secretary of State applied to amend the defence to contend that the procedural challenge was outside section 288. The court permitted the amendments and allowed the claimant to advance ground 1 by judicial review under CPR 17. The substantive issues were whether the Inspector had lawfully maintained the written-representations procedure and had taken account of the Parish Council’s viability evidence.

1. Ground 1 dismissed. The Inspector’s witness statement established that he had reviewed the claimant’s and Parish Council’s requests for a hearing or inquiry before the site visit and had judged written representations appropriate. The absence of contemporaneous notes did not make that evidence unacceptable.

2. The criteria in the PINS guidance required an evaluative judgment. Complexity, the need to test evidence by questioning and the degree of local interest were relevant considerations, but the guidance did not make any one factor determinative. The Inspector was entitled to conclude that viability evidence could be dealt with through written representations. The local planning authority had itself agreed that written representations were suitable, with knowledge of the planning history and substantial local opposition.

3. There was no statutory or policy duty to give reasons for maintaining the procedure where the choice did not differ from that of the appellant or local planning authority. Applying Save Britain’s Heritage v SSCLG [2018] EWCA Civ 2137 and the principles discussed in R (CPRE Kent) v Dover District Council [2017] UKSC 79, any common-law duty in this purely procedural context would require particularly strong legal or policy reasons. Those circumstances were absent. The case was small-scale and the procedure was supported by the appeal parties.

4. Ground 2 dismissed. The Inspector expressly referred to the Parish Council’s submission and had the Officer’s Report on the later application before him. That report addressed the offers of £425,000 and £490,000 and explained why they did not establish viability. The Inspector was not required to mention each point expressly. The record showed that the viability evidence had been considered and that weight had properly been given to the Everard Cole assessment.

5. The claimant and Parish Council had no legal entitlement to be invited to make further submissions on the later refusal. The claim failed. The parties were invited to agree the resulting order.