Ashley, R (on the application of) v Secretary of State for Communities and Local Government & Ors

This is an appeal against a decision of Mr Robin Purchas QC sitting as a deputy High Court judge in the Administrative Court on 29 March 2011. The judge dismissed the application of Mr Robert Ashley, the appellant, to quash a decision of the Secretary of State for Communities and Local Government made by an Inspector and dated 29 March 2010 to grant planning permission to Taylor Wimpey UK Ltd (“Taylor Wimpey”) for a development at the site of the former Montbelle School, Domonic Drive, New Eltham, London SE9.

The Inspector allowed an appeal against refusal of planning permission by the London Borough of Greenwich. Permission was granted on the Secretary of State’s behalf for the construction of 43 dwellings, new access roads and footpath link, together with the provision of associated open space and landscaping.

The appellant brings the claim as Secretary of the Domonic Drive Residents’ Association. He lives farther down the drive but Mr Bovey, who is Chairman of the Association, lives alongside the site at 136 Domonic Drive. The appeal turns on the impact of the development on the premises at that address, and no point is taken by the respondents because Mr and Mrs Bovey, who live there, are not the appellant.

The access from a parking area for eight cars to Domonic Drive, as provided by the permission, runs alongside Mr and Mrs Bovey’s property. The claim is based first on an allegation that the Inspector failed to comply with the requirements of natural justice in that the appellant did not have sufficient opportunity to respond to expert noise evidence filed by Taylor Wimpey during the legal process. Secondly, it is alleged that, in breach of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“EIA Regulations”), the planning authority failed to make an adequate screening decision.

The application for planning permission was made on 3 June 2009. There was no issue about the principle of residential development. The debate was as to its form. Three earlier proposals for development had been rejected on appeal. In a report of 22 July 2009, the council’s officers recommended that planning permission be granted. The appellant and Mr Bovey had made representations in writing about the effect of noise on 136 Domonic Drive, but in a very detailed report to the planning board the officers did not include material dealing with that subject.

At their meeting on 4 August 2009, the planning board refused the application. One of the three reasons given was that:

In their Grounds of Appeal, Taylor Wimpey disputed the alleged effect of the development on the amenity of the occupiers at the premises and a brief ground of appeal on the issue reflected the wording of and rejected the reason for refusal, referring to noise transfer and disturbance. The right to expand on that ground “as necessary” was reserved.

Taylor Wimpey requested that the appeal be dealt with by way of the written representation procedure. By a letter of 17 September 2009, the Planning Inspectorate acceded to that application. In that letter a timetable was set out by which it was provided that by 1 October 2009, the council should send a copy of their completed appeal questionnaire and supporting documents to the Inspectorate and to Taylor Wimpey. By 29 October, Taylor Wimpey were required to send a statement “if you need to add details to your appeal.”

By 19 November 2009, Taylor Wimpey and the council were required to send “any final comments you and they have on each other’s statements and on any comments from interested people or organisations.” It was said that a copy of the council’s final comments would be sent to Taylor Wimpey.

The contents of that letter were not made known to the appellant. On 21 September 2009, Mr and Mrs Bovey were sent a letter by the council notifying them of the appeal, the brief grounds for which were attached. It was stated that if they – and the same would apply to the appellant – had further comments to make, they should do so in writing. In the letter, the council stated that the “final submission date” was 29 October 2009. Both Mr Bovey and the appellant made written submissions on 22 October referring to the effects of the proposal on 136 Domonic Drive. The council’s submissions for the appeal were detailed, but in relation to noise transfer and disturbance, merely repeated the reason for refusal of permission.

I have referred to the “final submission date” stated in the letter. The letter continued:

On 29 October, Taylor Wimpey submitted to the Inspectorate and to the council an expert acoustic assessment which came from a consultancy in acoustics. It was based on detailed technical information and concluded that the proposal complied with the Unitary Development Plan and with PPG 24.

In commenting on the council’s submissions, as they were entitled to do, Taylor Wimpey drew attention to the absence of any substantive evidence from the council on that issue. In allowing the appeal, the Inspector referred to and summarised the expert acoustic assessment. He concluded at paragraph 18:

In support of his submission that the hearing was unfair, Mr Kolinsky for the appellant puts the sequence of events in this way. Taylor Wimpey’s grounds of appeal were confined on this issue to a bare assertion that there would not be noise transfer and disturbance affecting the appellant’s property. No indication was given that expert evidence in support of that contention would be submitted to the Inspector. No expert evidence, apart from planning officer’s reports, had been relied on during the series of applications on this site. The acoustic report was submitted to the Inspectorate on 29 October, the last permissible day, and no copy was sent to the appellant.

The appellant had been told in the letter of 23 September that the “final submission date” was 29 October and he was told to “ensure that your comments reach them by the final submission date”. However, the appellant was not told that this important expert evidence on a central issue had been submitted and would be considered by the Inspector. The appellant and other residents were unaware of the extent of the acoustics report until it was referred to in the Inspector’s decision dated 19 February 2010.

Reference has been made to a Planning Inspectorate’s Guidance document headed: Planning appeals and called-in planning applications (PINS 01/2009). I will refer to it later in this judgment. There was no evidence that the appellant was aware of its content at the relevant time although he had been told that it could be accessed.

It is submitted by Mr Kolinsky that the procedure was unfair in that the appellant was not made aware of an expert report produced at the time and in the circumstances described. It was submitted on the date which the appellant was told by the council was the final submission date. The appellant reasonably assumed that there would be no opportunity for further comment after that date, so that further action by him would not have been appropriate. No warning of the report had been given in the grounds of appeal. There was no background of expert evidence in the planning proceedings in relation to this site.

It was further submitted that the Inspectorate, or the Inspector himself, aware of this sequence of events, should have given the appellant, as the person directly affected, an opportunity to comment on the expert evidence. The reason for refusal and the ground of appeal refer specifically to 136 Domonic Drive. The appellant could not have been expected to anticipate the introduction of important new evidence at the time it was and without his having the opportunity to comment. The Inspectorate’s own Guidance made inadequate provision for the situation which occurred.

Mr Kolinsky referred to Article 6(3) of the Aarhus Convention. He does not submit that the Convention applies in the present situation but he relied on the provision in the Article:

Counsel also referred to the case of Phillips v First Secretary of State & Others[2003] EWHC 2415 (Admin). That was a case involving an allegation of breach of natural justice. The facts are different in that a new point had arisen, as distinct from expert evidence on an existing point. It is submitted that the principle stated by Richards J at paragraph 55 is applicable:

The Secretary of State and Taylor Wimpey submit that there is a short and simple answer to the claim that the hearing was unfair. The appellant should have visited the council offices after the final submission date of 29 October to see what was to be placed before the Inspector. Had the appellant done so, he could then have sought the opportunity from the Inspectorate to make further representations. The appellant had hitherto participated in the planning process and strongly opposed the proposed development and could be expected to continue to participate by such a visit after 29 October.

When making the comment he did about the lack of opposition to the acoustic report, the Inspector was entitled to assume that there had been such a visit. In any event, to expect the Inspector or the Inspectorate to check whether the appellant had seen the expert report was to place too heavy a burden on them, a burden which would render ineffective the written representation procedure. No breach of the Town and Country Planning (Appeals) (Written Representation Procedure) (England) Regulations 2009 was alleged, and the hearing was, in the circumstances, fair.

It is common ground that the Regulations do leave a discretion to decision makers by way of allowing further time for information to be sent in. It is also common ground that whether there has been a fair hearing is fact sensitive and it is for the court to decide whether, on the particular facts, the hearing was fair.

Looming large during the hearing have been the contents of written procedural Guidance given by the Planning Inspectorate, to which I have already referred (PINS 01/2009). I will need to comment on it, but the appeal must be approached, as the parties accepted, on the basis that the appellant was not aware of the written Guidance. It may however throw light on the Inspectorate’s intentions and what is good practice, although it cannot of course provide a conclusive determination of whether the appellant received a fair hearing.

The appellant submits the hearing was unfair because he was not made aware of the acoustic report which played a significant part in the Inspector’s decision. Had he been aware of it, he would have taken action including representations that he should be given the opportunity to make submissions in reply. The appellant relies on the Guidance in support of a second limb of his submission. The Inspector, or the Inspectorate, knowing of the likely importance of the acoustic report ought to have made the appellant aware of it. Further, it is submitted, it would have been clear that the written representation procedure on which the Inspectorate had resolved, notwithstanding requests for an Inquiry, was not appropriate.

The written representation procedure is designed to enable an appeal to proceed “quickly and fairly” and I emphasise the word “fairly” (paragraph 4.1.1. of the Guidance). The criteria for determining the procedure for a planning appeal is at Annex C of the Guidance, which states that written representations would be the most appropriate procedure if “the Inspector should not need to test the evidence by questioning or to clarify any other matters.” It is stated that an inquiry, an alternative procedure, would be the most appropriate procedure, where “evidence needs to be tested”, if both “the issues are complex and likely to need evidence to be given by expert witnesses.”

I regard that Guidance as a strong indication that, had challenge been made to the expert acoustic report, a different procedure would have been followed. That view is supported by the Inspector, finding it appropriate to state, at paragraph 18, that he relied on the report “in the absence of any contrary evidence.”

I do not propose to conduct a full analysis of the Guidance. However, it appears to me that the respondents would not have been in a stronger position had the appellant examined it. In my view, the Guidance deals less than adequately with the legitimate interests of interested persons in the position of the Association, the appellant and Mr and Mrs Bovey, in circumstances such as the present.

The Guidance provides, at 1.14.4:

These provisions are far from an indication that fresh comments or fresh action are appropriate following the “final submission date”. Moreover, it is stated at 4.5.2, which appears under the specific heading, “Interested persons’ representations and the 6-week stage”:

It is not necessary to my conclusion but in my respectful view, the Planning Inspectorate’s Guidance should be reviewed with a view to preventing the unfairness which, in my judgment, may arise if it is followed. There are circumstances in which, to avoid unfairness, representations by interested parties outside the six-week period will be appropriate. The view I have formed that in the circumstances the procedure followed was unfair is given further weight, in my view, by reference to the Guidance which has a potential for unfairness. The contents of the Guidance may have influenced the Inspectorate when failing to take action in a situation where written expert evidence had for the first time been submitted by the appellant on the last day of the six week period. No action was taken.

I have come to the conclusion that the hearing was, in the circumstances, unfair. My conclusion depends on a combination of circumstances which may occur only rarely. First, a reason for refusal was directed specifically to particular premises, 136 Domonic Drive, to the amenity of which particular attention could be expected to be given during the appeal process. Secondly, the noise issue which was, in the event, crucial, had not been the subject of specific consideration in submissions to the planning board, either by Taylor Wimpey or by the council. Thirdly, expert evidence was neither mentioned nor was it specifically contemplated in the ground of appeal submitted. Fourthly, the written representation procedure had been selected on the assumption that disputed expert evidence was not to be involved in the appeal. The appellant could not be expected to anticipate that such evidence would be crucial to the appeal decision. Fifthly, the appellant was told in terms that 29 October was the “final submission date”. The appellant should have been told of the committee report and given an opportunity to respond.

Attractive though the submission is that the appellant had only himself to blame because of his failure to inspect the later evidence at the council offices, he does not appear to me in the particular circumstances to have had that “fair crack of the whip” to which he was entitled (Lord Russell in Fairmount Investments Ltd v Secretary of State for the Environment[1976] 1 WLR 1255). It follows that I respectfully disagree with the judge’s finding that it was not unfair to have expected the claimant or the interested parties in the circumstances to have availed themselves of those opportunities; that is the opportunities “to enquire what representations had been made by [Taylor Wimpey] or to inspect the council’s file in that respect.”

Moreover, in finding the procedure appropriate, the judge relied on the contents of the expert’s report not having become controversial. That point goes with the first. The evidence had not become controversial because the appellant was unaware of it. The judge’s approach appears to have been coloured by his assessment of the planning Guidance. Thus he refers to the “procedures as laid down” and to the advice in the circular. References to the Guidance do not in my view assist the respondents in the particular circumstances which arose in this case. I would allow the appeal on this ground.

The second ground can be dealt with more briefly. The development comes within paragraph 10(b) of schedule 2 to the EIA Regulations. It is common ground that, as an urban development project with an area of development in excess of 0.5 hectares, a screening decision was required. The council failed to make such a decision, but on 27 October 2009 the Planning Inspectorate gave a screening direction that was copied to the council and the developer. The council was requested to place the screening direction on the planning register. They failed to do so but that is not a point that is relevant to the issues in this appeal.

The effect of a negative screening direction is that the project’s characteristics need not be the subject of an environmental impact assessment (EIA). In R (Mellor) v Secretary of State C-75/08, [2010] Env LR 2 the European Court of Justice held that it was not the case that:

The principle has been developed in the domestic courts. In R (Friends of Basildon Golf Course) v Basildon Council [2010] Env LR 16 it is stated that the decision taken on a screening opinion must be “carefully and conscientiously considered” (Pill LJ). In R (Bateman) v South Cambridgeshire District Council[2011] EWCA Civ 157 it was held that:

On behalf of the appellant, it is submitted that there is no evidence that the decision maker applied her mind to the issue of noise from the movements on the site of the proposed development. Further, there is no reference to the planning history of the site, during which three appeals against previous submissions were dismissed on the grounds of impact on the characteristic and appearance of the area. It was submitted that there is no reasoning apart from a simple recitation in the statutory test. The answers in the checklist do not help, it was submitted.

I consider the decision of the Planning Inspectorate to be adequately reasoned, and expressed. The checklist was completed. Appropriate substantive answers were given, for example, in boxes 6 and 21. In the present circumstances, the conclusion could properly have been expressed in a single sentence.

In my judgment there is no merit in the second ground of appeal.

For the reasons I have given earlier, I would allow this appeal and quash the planning permission.

I agree. I too would allow the appeal on the first ground only. This court has the benefit of evidence not put before Robin Purchas QC, namely a second witness statement from the appellant. No objection was made to our receiving it. If there was any doubt about what happened, the witness statement makes clear that the reason that the appellant did not attend the council offices after 29 October was because he thought there was no point. He had been led to believe that there was a deadline for making submissions and that deadline expired on 29 October. Nothing had alerted him to the possibility that highly significant expert evidence, as the Inspector found it to be, would be submitted at the very last minute.

This was not a case where an objector had failed to engage in the process and therefore a failure to respond after the deadline could legitimately be taken as acceptance. On the contrary, the appellant had been very active in visiting the council offices, making himself familiar with documents and making representations up until the deadline expired, both on the procedure to be adopted and the merits of the appeal.

To my mind, in those circumstances, and in the light of the history outlined by my Pill LJ, it was unfair to conclude that the appellant would have visited the council offices after the deadline for making submissions had expired, seen the material, and attempted to make further submissions upon it.

I am satisfied that there has been, on the particular combination of facts, a breach of natural justice. I should add two things: I also agree with Pill LJ that, given the timetable set out by the regulations, the Guidance to interested persons could be drafted in clearer terms. Further, I have my doubts as to whether the written representation procedure was appropriate, following the service of what was bound to be controversial expert evidence on a central issue. However, it is not necessary in all the circumstances to decide the point.

For those reasons, as I say, I too would allow the appeal.

I agree. I had originally entertained much greater doubts than either my Lord or my Lady about the prospects of this appeal, but I have been persuaded during the course of the argument that there has been a breach of the rules of natural justice on the facts of this case.

The Inspector was in my judgment only entitled to proceed to determine the appeal on the basis of the written representations if he could satisfy himself that an adequate opportunity had been given to the interested party to meet the new evidence that had been submitted very late by the appellant. This is not a case, as would be the usual position in relation to a written representation appeal, where the material put in by the parties up to the submission date would largely have consisted of additional representations designed to bolster the already stated grounds of appeal.

This case is different because a key reason – perhaps the key reason – for the local planning authority refusing planning permission in the first instance was the prospective impact on No 136 Domonic Drive from noise generated by the parking spaces at the adjacent property. It was for that very reason that the appellant chose to provide the Planning Inspectorate with additional expert evidence designed to allay those particular concerns.

When that occurred it was, in my view, incumbent on the Planning Inspectorate, which has the conduct of the appeal process right through from its initiation to its eventual determination by the Inspector, to have satisfied itself – and this ultimately falls on the shoulders of the Inspector who conducts and determines the appeal – that a proper opportunity had been given to the interested party to respond to that evidence, either within or, if necessary, outside the six-week submission period.

The published Guidance which Pill LJ has referred to and which is contained in PINS 01/2009 makes it clear in paragraph 2.4.1 that late representations and evidence will not be accepted, other than in exceptional circumstances and that those exceptional circumstances need to be explained. It seems to me that, as part of that procedure, it is, for the reasons which I have indicated, incumbent on the Planning Inspectorate to satisfy itself that the interested party and not merely the local planning authority have been informed of the existence of that evidence so as to ensure them an opportunity to comment on it if so advised.

The facility under 2.4.1 for receiving that evidence, so to speak, out of time is of no assistance to the interested party if that party does not have notice of its existence and to say, as the judge did, that that can be remedied by the interested party going along at the end of the submission period to the local planning authority in order to inspect the file presupposes that there is some reason for the interested party to do that, on the assumption that there may have been additional evidence served at the very end of the six week period. It seems to me that that imposes what is tantamount to an obligation on the interested party that is unreasonable against the background of a general rule that no late evidence will be received by the Planning Inspectorate.

If the Inspector wished to adhere, as he did, to the written statement procedure, he could only in my judgment do that consistently with the rules of natural justice by, as I have said, satisfying himself that the interested party was aware of the late evidence and had in fact chosen to make no comment upon it.

So, for those reasons, I would also allow this appeal.