Mr Les Barlow (on behalf of Harthill Against Fracking) v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 31 January 2019 |
| Neutral Citation | [2019] EWHC 146 (QB) |
| Docket Number | Case No: CO/2810/2018 |
| Court | Queen's Bench Division |
| Date | 31 January 2019 |
[2019] EWHC 146 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT (SITTING IN LEEDS)
Combined Court Centre
1 Oxford Row, Leeds LS1 3BG
THE HONOURABLE Mrs Justice Andrews DBE
Case No: CO/2810/2018
Ashley Bowes (instructed by Leigh Day) for the Claimant
Stephen Whale (instructed by Government Legal Department) for the Defendant
John Litton QC (instructed by DLA Piper Scotland LLP) for the First Interested Party
The Second Interested Party did not appear and was not represented
Hearing dates: 25 January 2019
Approved Judgment
INTRODUCTION
The Claimant, Mr Barlow, is a resident of Harthill in Rotherham. He is the chairman of an action group named Harthill Against Fracking (“HAF”) which was formed to oppose the proposals of the First Interested Party, (“INEOS”), to construct a well site and create a new access track to drill and pressure transient test a vertical hydrocarbon exploratory well, and carry out ancillary works on land at Harthill (“the development site”).
On 30 May 2017, INEOS applied to the local planning authority, Rotherham Metropolitan Borough Council (“the Council”) for planning permission for the proposed development. The Council failed to make a decision on the application within the prescribed time, and on 6 December 2017 INEOS appealed under s.78 of the Town and Country Planning Act 1990 (“the 1990 Act”). The Secretary of State appointed a Planning Inspector, Mr Stephen Roscoe, to hold an Inquiry and determine the appeal.
The Inquiry opened on 24 April 2018 and closed on 3 May. The Inspector issued his decision letter on 7 June 2018, allowing the appeal and granting permission subject to various conditions. These included obtaining the agreement of the Council to a traffic management plan and to the number of passing places along the access route, which would have to be put in place before any development commenced.
No-one has taken issue with the Planning Inspector's conclusions, or with his reasons for reaching them. The sole issue in this challenge under s.288 of the 1990 Act is whether the refusal by the Inspector to accede to the Claimant's application on the first day of the Inquiry for a four week adjournment to enable him and HAF to further consider a report from AECOM, traffic management experts instructed by INEOS, and in particular the potential enhanced traffic management plan (“ETMP”) annexed to that report, was a breach of the rules of natural justice which caused material prejudice.
For the reasons set out in this judgment I have concluded that the Inspector's refusal to adjourn the Inquiry and the reasonable and proportionate measures he adopted instead to cater for the position of interested parties, including the Claimant, did not deprive the Claimant of a reasonable opportunity to challenge INEOS's case and put his and HAF's opposing case on the appeal. There was no procedural unfairness, and there was no material prejudice. This statutory challenge must therefore be dismissed.
Applicable legal principles
The relevant legal principles were uncontroversial and are helpfully set out in the judgments of Jackson LJ and Beatson LJ in Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 470 at paragraphs [62] and [85]–[88]. Procedural fairness requires that (i) a party to a planning inquiry knows the case he has to meet and (ii) has a reasonable opportunity to adduce evidence and make submissions in relation to that case, or, as Beatson LJ characterised it, a “ reasonable opportunity to put his case.” Beatson LJ concluded at [90] that “ what is needed is knowledge of the issues in fact before the decision maker… and an opportunity to adduce evidence and make submissions on those issues.” If material prejudice is caused by procedural unfairness, the court may quash the decision of the Planning Inspector.
The Town and Country Planning Appeals (Determination by Inspectors) (Inquiry Procedure) (England) Rules 2000 (“the Appeals Rules”) set out the procedures to be followed in planning appeals. Whilst they are not a complete code for achieving procedural fairness, the Appeals Rules are designed to assist in promoting it.
Rule 14 of the Appeals Rules provides that parties appearing at an Inquiry shall furnish copies of their proofs of evidence to the Secretary of State four weeks before the date fixed for the hearing. That is an indication that four weeks would generally be regarded as sufficient to enable parties to prepare their responses to the opposing parties' evidence; however, it does not necessarily follow that a shorter period will be insufficient.
Rule 16(2) requires the Inspector to identify at the start of the Inquiry what are, in his opinion, the main issues to be considered at the Inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear. Rule 16(3) makes it clear that this does not preclude such persons from referring to any other matters which they consider relevant to the consideration of the appeal.
Rule 16 (12) provides that:
“The inspector may take into account any written representations or evidence or any other document received by him from any person before an inquiry opens or during the inquiry provided that he discloses it at the inquiry.”
Thus an inspector may receive new evidence even in the course of the hearing, but his powers must be exercised in accordance with the rules of natural justice. To that end, Rule 16(13) provides that:
“the inspector may from time to time adjourn an inquiry.”
In Engbers v Secretary of State for Communities and Local Government [2016] EWCA Civ 1183 Lewison LJ said at [5]:
“… One of the principal purposes of the Rules is to make the inquiry more focussed, so that the main protagonists (i.e. the appellant and the local planning authority) know what is in issue between them. At the same time, however, the ability of the public to participate in environmental decision making is of considerable importance, as recognised for instance by the Aarhus convention”.
Thus, considerations of procedural fairness will apply to all persons who are entitled to have a say at a planning inquiry, and not just the two main protagonists or anyone with formal “Rule 6” status. It will be seen from the history of the present case that the Inspector had this well in mind.
A planning inspector (or a planning authority) is entitled to grant planning permission which is different to that sought, provided that it does not result in a development which is substantially or significantly different from that which the application envisaged: see Bernard Wheatcroft Ltd v Secretary of State for the Environment (1980) 43 P & CR 233. The Planning Inspectorate has indicated that its inspectors will take account of the Wheatcroft principles when deciding if proposed amendments will be accepted: see Planning Inspectorate Procedural Guide – Planning Appeals (England) 2018, Annex M, at paragraph M 2.2.
However, even if proposed changes to the application do not appear to involve a substantial or significant difference, procedural fairness may still require that persons other than the applicant be consulted upon and afforded a reasonable opportunity to make representations about them. The importance of not conflating the substantive and procedural constraints upon the powers of a local planning authority (or an inspector on an appeal) was emphasised by John Howells QC in R (Holborn Studios Ltd) v Hackney London Borough Council [2017] EWHC 2823 (Admin) at [72] and [73].
Factual Background
The Council published INEOS's application documents online in June 2017. They included an Environmental Report with a section devoted to traffic and transport. One of the appendices to the Environmental Report was a draft Traffic Management Plan (“TMP”) drawn up by INEOS's original traffic consultants, Curtins Consulting Ltd., which Curtins indicated was to be developed in consultation with the Highway Authority. The Council is a unitary authority, and so it was also the relevant Highway Authority. It had a separate Transportation Unit which provided it with the relevant expertise in this area.
Curtins set out the likely traffic flows (including construction HGVs) along Bondhay Lane, Packham Lane and Common Road which were needed for access to and from the development site. The traffic flows were estimated both on an average basis and on a maximum number of vehicle movements per day during each of the various stages of the development project. The estimated maximum number of vehicles peaked at 70 per day during the site development and establishment stages, reducing to a maximum of 60 such movements during subsequent stages. The development traffic flow rates set out in the Traffic and Transport chapter of the Environmental Report and supporting spreadsheets appended to it, have not changed. Nobody has challenged the underlying estimates of traffic volumes (though there has been debate as to whether it is more appropriate to use maximum figures or averages) and all the highways safety evidence has proceeded on an assumption that they are reliable.
The initial TMP proposed the introduction of a temporary one-way system on local roads to alleviate concerns about highway safety. It also made provision for six new passing places within the highway boundary along Bondhay Lane and Packham Lane. Two addenda to the TMP were produced by Curtins prior to the appeal, one in August 2017 and the other on 1 December 2017. The latter increased the number of new passing...
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