Secretary of State for Communities and Local Government and Anr v Claire Engbers
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Hamblen,Lord Justice Henderson |
| Judgment Date | 30 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1183 |
| Docket Number | Case No: C1/2015/3556 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 2016 |
[2016] EWCA Civ 1183
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT, PLANNING COURT
His Honour Mr Justice Holgate
CI/2984/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Hamblen
and
Lord Justice Henderson
Case No: C1/2015/3556
Mr Richard Kimblin QC (instructed by Government Legal Department) for the Appellant
Mr Christopher Lockhart-Mummery QC (instructed by Harvey Jaskel Solictors for the Respondent
Hearing date: 24 November 2016
Approved Judgment
Following an eight day public inquiry a planning inspector dismissed Mrs Engbers' application for outline planning permission to erect 110 dwellings at Thames Farm, Harpston near Lower Shiplake in Oxfordshire. The main reason for his conclusion was that the proposed development would have a "severe adverse residual cumulative effect on the safety and convenience of highway users." Mrs Engbers argues that the decision was procedurally unfair because she and her team were not adequately alerted to the fact that highway safety at a proposed pedestrian crossing was in issue; and that the inspector was wrong not to have properly considered whether any concerns could have been met by the imposition of a condition attached to a planning permission prohibiting the development unless and until adequate measures had been agreed to preserve highway safety (a so-called " Grampian condition": see Grampian Regional Council v City of Aberdeen District Council (1984) 47 P & CR 633).
Both these arguments succeeded before Holgate J who quashed the inspector's decision. His decision is at [2015] EWHC 3541 (Admin). With the permission of Gloster LJ the Secretary of State appeals.
Leaving aside a determination by written representations, there are two procedures by which a planning inspector may determine an appeal: by hearing or by inquiry. A hearing is the less formal and more inquisitorial of the two. An inquiry is more formal and adversarial. Procedure at a public inquiry is regulated by the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 ("the Rules"). The relevant rules, for present purposes are:
i) rule 6 (which requires the local planning authority and the appellant to provide a "full statement of case");
ii) rule 7 (which gives the inspector power in a pre-inquiry document to inform the appellant, the local planning authority and any statutory party of the "matters about which he particularly wishes to be informed for the purposes of his consideration of the appeal");
iii) rule 14 (which requires parties appearing at an inquiry to furnish their proofs of evidence in advance);
iv) rule 15 (which requires the local planning authority and the appellant to prepare a statement of common ground). A statement of common ground is a written statement prepared jointly by the local planning authority and the appellant and which contains agreed factual information about the proposal which is the subject of the appeal (rule 2).
Rule 16 provides:
"(1) Except as otherwise provided in these Rules, the inspector shall determine the procedure at an inquiry.
(2) At the start of the inquiry the inspector shall identify 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.
(3) Nothing in paragraph (2) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph.
(12) The inspector may take into account any written representation 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."
However, this is not a complete procedural code because the inspector is also required by the common law to conduct the inquiry in accordance with the principles of procedural fairness. 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.
The leading case on procedural fairness in the context of planning inquiries is the decision of this court in Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 470; [2014] PTSR 1145. After a review of some of the case law, Jackson LJ set out the relevant principles at [62]:
"(1) Any party to a planning inquiry is entitled (i) to know the case which he has to meet and (ii) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case.
(2) If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the inspector's decision.
(3) The 2000 Rules are designed to assist in achieving objective (1)(i), avoiding pitfall (1)(ii) and promoting efficiency. Nevertheless the Rules are not a complete code for achieving procedural fairness.
(4) A rule 7 statement or a rule 16 statement identifies what the inspector regards as the main issues at the time of his statement. Such a statement is likely to assist the parties, but it does not bind the inspector to disregard evidence on other issues. Nor does it oblige him to give the parties regular updates about his thinking as the Inquiry proceeds.
(5) The inspector will consider any significant issues raised by third parties, even if those issues are not in dispute between the main parties. The main parties should therefore deal with any such issues, unless and until the inspector expressly states that they need not do so.
(6) If a main party resiles from a matter agreed in the statement of common ground prepared pursuant to rule 15, the inspector must give the other party a reasonable opportunity to deal with the new issue which has emerged."
The main debate in this appeal centres on principles (5) and (6). The mere fact that some aspect of the proposed development is not in issue between the developer and the local planning authority does not preclude the inspector from considering that aspect and to give it decisive weight, if it is raised by a third party. That is illustrated by R (Tatham Homes Ltd) v First Secretary of State [2005] EWHC 3538 (Admin). Sevenoaks District Council refused a planning application on the basis that the proposed development would be detrimental to the character and visual amenity of the area. The developer appealed. The statement of common ground between the developer and the council said that "Privacy and overshadowing do not form part of the Council's reason for refusal and are not therefore at issue with the Council." Consistently with that statement, the council did not tender evidence on privacy or overshadowing. The inspector did not identify them as main issues at the opening of the inquiry. However a local resident (Mr Fowler) did identify them both in correspondence before the inquiry and in evidence given to the inspector. The inspector also made his own site inspection. The developer's team were aware that residents had raised these concerns, and consequently their witness did give some evidence on those questions. Sullivan J held that there had been no breach of procedural fairness. He said at [14]:
"The issue of overlooking in general, and the impact of the proposed development on the privacy and amenity of Number 16 Woodside Road in particular, were squarely raised before the Inspector. They were "fairly and squarely at issue". Although the second issue had not been raised by the [council], the [developer] could reasonably have anticipated that the Inspector might be persuaded by the force of Mr Fowler's objection."
He added at [16]:
"The second main issue had been raised by Mr Fowler and others in correspondence prior to the inquiry. Thus the [developer] had an opportunity to present whatever evidence he wished in response. Having heard Mr Fowler amplify his objection in his oral evidence, the [developer] had a further opportunity to respond."
The clear message of that case (reflected in principle (5) in Jackson LJ's summary) is that a developer cannot ignore the views of local residents, even if they are not supported (or are even contradicted) by the council. To hold otherwise would undermine the value of public participation in environmental decision making.
The cases principally relied on by Mr Lockhart-Mummery QC, on Mrs Engbers' behalf, were cases in which the local planning authority itself resiled from or called evidence to contradict a statement of common ground. That is not this case. He commended in particular the decision of Mrs Justice Patterson in R (Gates Hydraulics Ltd) v Secretary of State for Communities and Local Government [2009] EWHC 2187 (Admin). That was a case in which an issue about noise arising from proposed development was originally in issue between the developer and the local planning authority but became the subject of a statement of common ground after exchange of proofs of evidence. The statement of common ground was given to the inspector at the start of the inquiry. At the inquiry the local planning authority's only witness said that she agreed with the developer's noise consultant, as a result of which the latter was not called. No third party...
To continue reading
Request your trial
-
Preston New Road Action Group (Through Mrs Susan Holliday) v (1) Secretary of State for Communities and Local Government
...and Local Government [2014] EWCA Civ 470, [2014] P.T.S.R. 1145 and Secretary of State for Communities and Local Government v Engbers [2016] EWCA Civ 1183. He saw a distinction between cases in which an inspector differs from an agreed position reached between the parties and recorded in a ......
-
Preston New Road Action Group (Through Mrs Susan Holliday) (First Claimant) Gayzer Frackman (Second Claimant) v Secretary of State for Communities and Local Government (First Defendant) Lancashire County Council (Second Defendant) Cuadrilla Bowland Ltd (Third Defendant) Cuadrilla Elswick Ltd (Fourth Defendant)
...was adopted and applied by the Court of Appeal in Secretary of State for Communities and Local Government and another v Engbers [2016] EWCA Civ 1183. 104 This distillation of the principles is derived from cases such as R (Poole) v Secretary of State for Communities and Local Government [20......
-
The London Historic Parks and Gardens Trust v The Minister of State for Housing
...Developments Ltd v Secretary of State for Communities and Local Government [2014] PTSR 1145 and Secretary of State v Claire Engbers) [2016] EWCA Civ 1183)) 121 Thirdly, the Secretary of State, the applicant for planning permission, was on notice of the point and could reasonably have antic......
-
Gladman Developments Ltd v Secretary of State for Communities and Local Government
...L.J., and paragraphs 87 to 92 in the judgment of Beatson L.J.; Secretary of State for Communities and Local Government v Engbers [2016] EWCA Civ 1183, at paragraphs 5 to 9 in the judgment of Lewison L.J.; and Preston New Road Action Group v Secretary of State for Communities and Local Gove......