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Discussing the Court of Appeal’s judgment in Hopkins Developments Ltd v Secretary of State for Communities and Local Government, Andrew Fraser-Urquhart, a barrister specialising in planning, environmental and compulsory purchase matters at Francis Taylor Buildings, says the case serves as a welcome reminder of the need for developers in particular to be vigilant about their preparation for inquiries.
Hopkins Developments Ltd v Secretary of State for Communities and Local Government  EWCA Civ 470, All ER (D) 124 (Apr)
The inspector appointed by the defendant Secretary of State dismissed the claimant’s appeal against the refusal of outline planning permission. The judge quashed that decision, as the claimant had not had a reasonable opportunity of addressing character/appearance and sustainability issues, which had turned out to be determinative. The Secretary of State appealed. The Court of Appeal, Civil Division, in allowing the appeal, decided that issues of character/appearance and sustainability had clearly been live, and the claimant had had an opportunity to make any submission which it had wished on those matters.
The principal issue raised by this case is the somewhat vexed one of whether, pursuant to rules of natural justice or procedural fairness, an inspector’s decision was to be quashed because she reached her decision by reference to matters which had been debated in evidence but which the inspector had not identified as main issues.
The Court of Appeal was told by counsel on both sides that the case affected the conduct of planning inquiries generally and that is surely right. Indeed, the issues in this case may well be of increasing importance as developments such as the rise of social media and the Internet encourage participation in planning enquiries and thus the potential deployment of a wider range of issues by third parties than those which are debated by the principal parties of developer and local planning authority.
Cases based upon procedural fairness and natural justice are peculiarly fact sensitive. In this case the inspector had identified, in a fashion which will be familiar to all practitioners at planning inquiries, the main issues. She had done so in writing following the exchange of proofs and then, following further work done by the parties, orally at the beginning of the inquiry. Perhaps somewhat surprisingly, issues as to the sustainability of the site and the effect on the character and appearance of the area were not listed among those main issues. Nevertheless, there was extensive oral evidence from both the principal parties and a third party resident concerning those matters.
The inspector issued a decision letter in which she not only decided that the site’s lack of sustainability and the effect of the development on the character and appearance of the area were harmful, but indeed so harmful that they were sufficient to significantly and demonstrably outweigh the benefits of the scheme, such that a refusal was justified even in circumstances where the council could not demonstrate a five-year land supply.
Judge Denyer QC at first instance quashed the inspector’s decision, on the grounds that her failure to notify the parties that she was minded to rely on issues of character/appearance and sustainability constituted a breach of natural justice. It was said that the developer did not have a reasonable opportunity of addressing and producing evidence in relation to these issues which turned out to be determinative.
The lead judgment of the Court of Appeal was delivered by Jackson LJ. After a review of the relevant authorities, in which he was somewhat disparaging about the time-honoured ‘fair crack of the whip’ test first set out per Lord Russell in Fairmount Investments Ltd v Secretary of State for the Environment  2 All ER 865,  1WLR 1255, Jackson LJ suggested its replacement by what he described as the ‘more pedestrian’ but more useful test of whether there had been procedural unfairness which materially prejudiced the complaining party.
Holding that the inquiry procedure rules were not a comprehensive code for achieving procedural fairness, the court concluded that an inspector’s statement of the main issues could not be binding. A party had to be given fair notice of the case it had to meet and a reasonable opportunity to adduce evidence and make submissions. Importantly, points made by third parties cannot be assumed to be settled just because the main parties agree on them. The main parties should deal with those issues, unless and until the inspector expressly states that they need not do so.
In this case, the council had raised issues of sustainability in their opening statements to the inquiry. Local residents had raised issues of character and appearance in their evidence. The main parties had not recorded agreement about those matters in the statement of common ground. The court also offered the view that issues as to the character and appearance of an area are a matter of aesthetics and subjective impression, and the developers may not have achieved much by making submissions about the matter (perhaps, simply reinforcing a view many practitioners may secretly hold)
Accordingly, the appeal succeeded.
This case highlights two, potentially unpalatable, issues for developers. First, it remains exceedingly difficult to secure the quashing of a decision on the grounds of natural justice/procedural unfairness. It is clear that the inspector’s setting out of the main issues cannot be relied upon, even at the outset of an inquiry, as a decisive statement of the parameters of the decision and therefore the evidence needed. This is despite the clear procedural guidelines within the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, SI 2000/1624 for the exchange of proofs of evidence and statements of common ground.
The second issue is the difficulty that parties, particularly developers, are likely to face when deciding the witness team to prepare for an inquiry—in particular where resources are limited. This judgment offers inspectors a wide discretion to make a decision on issues which arise during an inquiry. Developers facing new issues will need to be well prepared, flexible and assertive in advocacy to make sure that they are able to respond to such new issues.
Developers should undertake the most careful analysis of third party representations. It has always been sensible practice that a thorough assessment is made of all the issues raised by third party representations, especially where they raise matters particular to an individual claimant.
Once this has been done, developers will need to put in place mechanisms to enable them to respond, possibly at very short notice, to such issues as may arise. Consideration in particular may need to be given to having appropriate witnesses at the very least available, with the ability to respond in writing to points of detail which may emerge during the inquiry.
That said, the decision in this case is neither particularly radical nor particularly surprising. Given that the issues had been ventilated during the inquiry, the court’s conclusion that there was no procedural unfairness is perfectly predictable. The case nevertheless serves as a welcome reminder of the need for developers in particular to be vigilant about their preparation for inquiries.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This article was first published in LexisPSL Property on 7 May 2014. Click here for a free one week trial of Lexis®PSL Property -including a significant Planning component.
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