Procedural Unfairness

December 2nd, 2016 by James Goudie KC

SoS for CLG v Engbers [2016] EWCA Civ 1183 was a procedural unfairness challenge to a Planning Inspector’s decision following a Public Inquiry to dismiss an application for outline planning permission which had been refused by South Oxfordshire District Council.  Lewison LJ (with whom Hamblen and Henderson LJJ agreed) observed (para 3):-

“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”).”

Lewison J set out the relevant rules for the purposes of the case, and continued (emphasis added):-

“5.       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.”

Lewison LJ stated (para 6) that the leading case on procedural fairness in the context of planning inquiries is the decision of the Court of Appeal in Hopkins v SoS (2014) EWCA Civ 470, (2014) PTSR 1145, where Jackson LJ set out six relevant principles at para 62.  Principle (5) is in part that the Inspector will consider any significant issues raised by third parties, even if those issues are not in dispute between the main parties.  Principle (6) is that if a main party resiles from what had been common ground, the Inspector must give the other party a reasonable opportunity to deal with the new issue.

Lewison LJ in Engbers continued (emphasis added):-

“7.       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. …”

“9.       The clear message … 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.”

At para 45, Lewison LJ said:-

“If a third party raises an issue which is at variance with the agreed stance of the appellant and the local planning authority, the inspector is in my judgment duty bound to consider it. Fairness to third parties demands no less. …”

He added (para 51):-

As I have said I do not consider that the fact that a particular matter is common ground between the developer and the local planning or highway authority debars the public from disagreeing. It may not be incumbent on an appellant to deal with every representation, but in the face of a clear consensus of opinion from local residents a developer takes a risk by failing to do so, …”

Lewison J also observed (para 12):-

“We were hampered to some extent in reconstructing the progress of events by the fact that some of the key documents were undated. I echo Jackson LJ’s observations in Hopkins at [15] that even in the specialist field of planning inquiries “people really should put dates on the documents which they send out”. It would be desirable for the Secretary of State or the Planning Inspectorate to incorporate that in clear written guidance.”


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