Vicente and Anor v Secretary of State for Communities and Local Government and Anor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Lord Justice Lewison,Lord Justice Longmore |
| Judgment Date | 05 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1555 |
| Docket Number | Case No: C1/2014/1365 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 December 2014 |
[2014] EWCA Civ 1555
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Lewison
and
Lord Justice Burnett
Case No: C1/2014/1365
Richard Kimblin (instructed by The Treasury Solicitor) for the First Appellant
Stephen Whale (instructed by Berwin Leighton Paisner LLP) for the Second Appellant
Annabel Graham Paul (instructed by Richard Buxton Solicitors) for the Respondent
Hearing dates: 18th November 2014
Introduction
The issue in this appeal is whether the a planning Inspector's decision dated 12 July 2012 to allow an appeal and grant planning permission for residential development on a site at Great Dunmow, Essex was vitiated by procedural unfairness. The matter came before Collins J as an application pursuant to section 288 of the Town and Country Planning Act 1990 ["the 1990 Act"] on 1 July 2013. In an ex tempore judgment he allowed the appeal and quashed the Inspector's decision with the result that the underlying appeal would be reheard. The judge expressed his decision as being a finely balanced one. Both the Secretary of State for Communities and Local Government and Taylor Wimpey UK Limited appeal against the order of Collins J.
Taylor Wimpey applied for planning permission for 100 houses on land to the south of Ongar Road, Great Dunmow. Uttlesford District Council refused permission. The farmland site lay outside the development limit under Local Plan Policy S7, which protects the countryside. The Council considered that the level of development proposed would be harmful to the character of the area. The Council also concluded that the proposal would compromise road safety. Additionally, it was concerned about a shortfall in primary school places and that the proposal made inadequate provision for "affordable housing", albeit that such concerns could be, and in due course were, dealt with by undertakings under section 106 of the 1990 Act. In refusing the application for planning permission the Council rejected the advice of its officials, as it was fully entitled to do.
Taylor Wimpey appealed against that refusal pursuant to section 78 of the 1990 Act. There are three ways in which an appeal may be determined by an inspector in such cases. First, at an inquiry. That is a relatively formal adversarial process with parties, often legally represented, statements of case, the calling of witnesses, cross-examination, formal speeches etc. Secondly, the appeal may be dealt with at a hearing. That is informal, albeit that the relevant council and applicant for planning permission are styled "parties" with others for the most part being involved at the discretion of the Inspector. The procedure is inquisitorial and discussion-led by the Inspector as well as being based on the underlying documents produced during the planning process. Thirdly, the appeal can be dealt with entirely on paper.
In this case the Inspector decided to proceed by way of hearing. The appellants before the judge were local residents who had objected in writing to the planning application ["the Objectors"].
The Town and Country Planning (Hearings Procedure)(England) Rules 2000 ["the Rules"] governed the appeal before the Inspector. A different set of rules governs planning inquiries. Once the Inspector had decided to proceed at a hearing, the Secretary of State was obliged to send a notice to that effect to the Council and to Taylor Wimpey (Rule 3A). The date on which that notice was sent was the "starting date" for the purposes of the Rules. Rule 4(2)(b) provides:
"The local planning authority shall ensure that within 2 weeks of the starting date –
(b) any –
(i) statutory party; and
(ii) other person who made representations to the local planning authority about the application occasioning the appeal,
has been notified in writing that an appeal has been made and of the address to which and of the period within which they may make representations to the Secretary of State."
Rule 6 then provides that the appellant, the local authority and others involved must provide anything they rely upon in writing according to a timetable.
Rule 7 requires the Secretary of State to fix the hearing within 12 weeks of the starting date, unless it is impracticable to do so. He must give at least four weeks' notice to those entitled to appear. Those entitled to appear are the appellant, the planning authority and statutory parties (Rule 9(1)). The Objectors were not statutory parties, but by Rule 9(2) the Inspector may permit any other person to appear at a hearing. That permission may not be unreasonably withheld. Rule 7(5) provides;
"The Secretary of State may in writing require the local planning authority to take one or both of the following steps –
(a) not less than 2 weeks before the date fixed for the holding of a hearing, to publish a notice of the hearing in one or more newspapers circulating in the locality in which the land is situated;
(b) to send a notice of the hearing to such persons or classes of persons as he may specify, within such period as he may specify."
The procedure at a hearing is governed by Rule 11:
"(1) Except as otherwise provided in these Rules, the inspector shall determine the procedure at a hearing.
(2) A hearing shall take the form of a discussion led by the inspector and cross-examination shall not be permitted unless the inspector considers that cross-examination is required to ensure a thorough examination of the main issues.
(3) Where the inspector considers that cross-examination is required under paragraph (2) he shall consider, after consulting the appellant and the local planning authority, whether the hearing should be closed and an inquiry held instead.
(4) At the start of the hearing the inspector shall identify what are, in his opinion, the main issues to be considered at the hearing and any matters on which he requires further explanation from any person entitled or permitted to appear.
(5) Nothing in paragraph (4) 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.
(6) A person entitled to appear at a hearing shall be entitled to call evidence but, subject to the foregoing and paragraphs (7) and (8), the calling of evidence shall otherwise be at the inspector's discretion.
The inspector may refuse to permit the—
(a) giving or production of evidence; or
(b) presentation of any other matter,
which he considers to be irrelevant or repetitious; but where he refuses to permit the giving of oral evidence, the person wishing to give the evidence may submit to him any evidence or other matter in writing before the close of the hearing.
(8) The inspector may—
(a) require any person appearing or present at a hearing who, in his opinion, is behaving in a disruptive manner to leave; and
(b) refuse to permit that person to return; or
(c) permit him to return only on such conditions as he may specify,
but any such person may submit to him any evidence or other matter in writing before the close of the hearing.
(9) The inspector may allow any person to alter or add to a hearing statement received under rule 6 so far as may be necessary for the purposes of the hearing; but he shall (if necessary by adjourning the hearing) give every other person entitled to appear who is appearing at the hearing an adequate opportunity of considering any fresh matter or document.
(10) The inspector may proceed with a hearing in the absence of any person entitled to appear at it.
(11) The inspector may take into account any written representation or evidence or any other document received by him from any person before a hearing opens or during the hearing provided the he discloses it at the hearing.
(12) The inspector may from time to time adjourn a hearing …"
The Outline Facts
The hearing was fixed for 11 April 2012 at 10.00 at the council offices. Councillors Mackman and Ranger attended with their planning officer, Clive Theobald. Taylor Wimpey was represented by a team led by David Lander. It included Jenna Smith who kept a detailed note of what occurred. The hearing lasted the day and was followed by a site visit the following morning. Nobody else attended the hearing. That is not uncommon because objectors are often content to rely upon their written objections. The Inspector has all the underlying planning materials. Nonetheless, the Inspector asked to see the public notification of the hearing and was handed a copy of a letter sent by the Council to local residents. It has been common ground that the Council assumed responsibility for notifying the hearing date to those who had objected to the development, I infer pursuant to a direction from the Secretary of State pursuant to Rule 7(5). The Inspector later noticed that the copy he had been given did not specify the time and date of the hearing. He took that up with Mr Theobald at the site visit but was reassured that the letters sent did provide the necessary details. He asked that the matter be checked. After the site visit the Inspector was told that notification had not been sent to objectors. It was in those circumstances that the Inspector decided to hold a second hearing on proper notification. That took place on 7 June 2012. The hearing itself occupied the day...
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