Sandra San Vicente and Another v Secretary of State for Communities & Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 01 July 2013 |
| Neutral Citation | [2013] EWHC 2713 (Admin) |
| Date | 01 July 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8954/2012 |
[2013] EWHC 2713 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/8954/2012
Ms Annabel Graham Paul (instructed by Richard Buxton) appeared on behalf of the Claimants
Mr Richard Kimblin (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Mr Stephen Whale (instructed by Berwin Leighton Paisner) appeared on behalf of the Third Defendant
This is an appeal pursuant to section 288 of the Town and Country Planning Act against the decision of an inspector, given as long ago as June of last year, whereby he allowed the appeal of Taylor Wimpey against the refusal by the local authority of planning permission for a residential development on a site on land south of Ongar Road in Great Dunmow, Essex. The appeal is brought by a number of objectors to the application on the basis that things went wrong procedurally. The only ground of appeal which survives, because there was an application to strike out, is this:
"The [Secretary of State]'s decision was unlawful by reason of procedural unfairness, namely the failure to ensure that all parties were notified of the hearing in accordance with the Town & Country Planning (Hearings Procedure) (England) Rules 2000 and having discovered a complete absence of notification of concerned residents, his failure to re-start the inquiry with a new Inspector."
That ground was not originally raised. The grounds which were raised, and which led to the application to strike out, were none of them points of law; they were all essentially matters of planning judgment. But they made it clear that the objectors were not happy with the outcome of the appeal to the inspector, and there was considerable local resistance to this application. The council's officer had recommended that the application be allowed, but the council had decided that it should not be.
The refusal was on four separate grounds. The first was that:
"The site lies outside the development limit where in accordance with Uttlesford Local Plan Policy S7 the countryside is to be protected for its own sake, the countryside will be protected from development unless it needs to be there or is appropriate to a rural area. The proposal would involve the erection of market housing which is not an appropriate form of development in the countryside, does not need to be there and would not protect the character of the countryside. The level of development proposed would be harmful to the character of the area. It therefore fails to comply with Policy S7 of the Uttlesford Local Plan."
Grounds 2 and 3 I need not go into. Essentially they are matters which were omitted but were in relation to affordable housing and mitigating the shortfall of primary school places. But those were matters which could be, and in due course were, dealt with by section 106 agreements.
Ground 4 was:
"The proposal would give rise to unacceptable level of road safety and traffic generation which would compromise the safety and convenience of users of the highway. It therefore fails to comply with Policy GEN1."
So far as that is concerned, there was evidence produced from the Highway Authority which indicated that various models and tests had been undertaken which satisfied the Highway Authority that there would be no generation of an unacceptable level of traffic which would or could compromise the safety and convenience of users. That was not a matter which objectors accepted, but of course it was a formidable barrier to any objection they raised on that score being accepted by the inspector and prevailing. Nonetheless, it was a matter which clearly they were interested in raising.
As I have said, the ground relied on is a procedural defect. There is no doubt that that defect existed. Whoever was primarily to blame — and it appears to have been accepted by the council that it was to blame — proper notification was not given to those who had made written objections and who were entitled to attend if they wished and make representations at the inquiry nor were they notified when and where the inquiry would be carried out. So it was that when the inquiry opened no objectors attended. The only persons there taking part (apart, of course, from the inspector) were the representatives of the appellant, the council, by two of the councillors who had been concerned in the matter. They were accompanied by the council's planning officer, who had incidentally, as I have said, been recommending that the application should be granted.
There was a point made at one stage by at least one of the objectors that that was unsatisfactory, but I am afraid there is nothing in that. It is perfectly proper and open to the council to have its planning officer in attendance, even though the recommendation has been contrary to that which the council eventually decided. There is no suggestion and can be no suggestion that the planning officer in any way misbehaved in what occurred before the inspector.
The inspector says that it was his experience that, albeit there were objections to planning applications, those objections were not always taken on by objectors attending a hearing and thus he was not entirely surprised that no objectors attended. He did check, he says, whether proper notification was given and was shown a letter which appeared to indicate that it had been. However, he concluded the hearing (that is to say the hearing in the council offices) on the first day, 11 April 2012, and went on a site visit the following day. It appears that at some stage on that day it was brought to his attention that the proper notice had not been given. Accordingly, it was necessary to decide what should be done.
Mr Whale has raised the point that it does not appear from the evidence that there had been any decision by the Secretary of State to delegate the means of notifying the hearing to the council, which is a course that can be adopted in accordance with the regulations. Accordingly, it was, he appeared to submit, not open for this point to be taken now. However, as I indicated in the course of argument, it seems to me that that is a point which has no merit at all because there can be no question but that the objectors who had objected in writing should have been notified because they were, within the meaning of the relevant regulations, statutorily entitled to appear and to have their objections considered by the inspector. It seems to me to matter not who was to blame, whether the Secretary of State or the council, for the failure to notify them as they should have been notified. As I say, it was accepted between the Secretary of State and the council that the council was to blame, and in due course the council, without any objection on its part, was ordered to pay the costs that had been occasioned by the need to reopen the hearing.
There are two means whereby a planning appeal can be dealt with at a hearing. It can sometimes be dealt with on paper, but we are not concerned with that in this case. It can either be a formal inquiry, which usually involves parties being represented, cross-examination of witnesses, and perhaps a fair degree of formality. The alternative is what is known as an informal hearing. It is an inquisitorial process. The inspector in question is responsible for deciding how it should operate, but it is important that all those who are entitled to object should be able to make such objections as they wish to make and, if necessary, develop them. Furthermore, the normal system will involve the inspector enabling objectors to ask questions of witnesses should he think that that is necessary.
There is evidence before me from Mr Linscott who is a group manager in the planning inspectorate. What he says is this:
"The Hearing Rules permit the Inspector great discretion in the manner in which they conduct a hearing. It is custom and practice that s/he briefly summarises the parties' cases at the opening and seeks their confirmation that s/he has understood them. S/he will then ask a series of structured questions of each party's witnesses, ensuring that opposing parties are permitted to respond on the answers to those questions. I recently asked a sizeable number of Inspectors whether they follow my approach, which is once a question or a topic is 'on the floor' I allow a debate to take please between the relevant witnesses and/or the witnesses to ask one another question (ie rather than require that all evidence is given 'through' the Inspector). The great majority confirmed that they do. Provided that the Inspector maintains firm control and authority, ensures that interested parties (who are likely not to be experienced either in planning matters [or] participating in public tribunals) are brought properly into the proceedings, and keeps the discussion to the point, that seems to be best practice."
It certainly appears that the inspector, broadly speaking, followed that when conducting the hearings before him.
Once the mistake had been identified, the question then arose as to what should be done. It was obviously necessary that there be some form of rehearing, because it was obviously not right that objectors should be met with a decision which was made in their absence, even though they might be able to make their further representations in due course,...
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