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:

rule 6 (which requires the local planning authority and the appellant to provide a “full statement of case”);

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”);

rule 14 (which requires parties appearing at an inquiry to furnish their proofs of evidence in advance);

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:

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]:

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]:

He added at [16]:

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 gave evidence before the inspector, and it does not appear that she had written representations on the subject either. Despite the existence of the common ground the inspector decided against the developer on grounds relating to noise. It was in that context that Ms Patterson said that if the inspector still had concerns about noise they should have been raised at the inquiry. That is a far cry from this case, where the local residents were clear in their view that the proposed pedestrian crossing was dangerous.

Since any case about procedural fairness is fact-sensitive it is necessary to go into the sequence of events in some detail. I should mention at this point that when the case was before the judge he was provided with a single witness statement from the inspector, which included the written representations made by the local residents and others, but which did not include the inspector’s written notes of what happened at the inquiry. Since the judge’s decision the inspector has prepared a second witness statement in which he exhibits his hand-written notes and a transcription of them. In giving permission to appeal Gloster LJ gave the Secretary of State permission to rely on this second witness statement. Mr Lockhart-Mummery invited us to review and discharge that part of the order. His argument, in essence, is that the admission of fresh evidence on appeal in public law cases is an exceptional course to be taken only “where it is necessary to put the public interest factors which are needed for the determination of the appeal before the court”: R (Mott) v Environment Agency [2016] EWCA Civ 564 at [58]. In principle I agree. But where, as here, we need to consider in some detail what actually happened at the inquiry it seems to me that we should not shut our eyes to the best evidence available: namely the inspector’s contemporaneous notes. In the end Mr Lockhart-Mummery did not object to our considering the inspector’s notes of what actually happened at the inquiry. As a result we have been able to form a much clearer picture about what happened at the inquiry than the judge was able to do.

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.

The appeal site is around 5.65 hectares in area. Its eastern boundary fronts on to the A4155 Reading Road. It was proposed that vehicular access to the site would be located at a point lying approximately in the middle of that frontage. The scheme also proposed two pedestrian routes between the appeal site and Lower Shiplake village centre in order to gain access to the local station, shops and other services. The second of these routes was known as route A. Route A was the main intended pedestrian route between the site and Lower Shiplake. The A4155 follows a straight alignment alongside the eastern boundary of the appeal site and runs for a further 190 metres or thereabouts beyond the southern boundary of the site. It then bends to the west at the Shiplake War Memorial traffic island which is located at the junction with Station Road. Route A involved the creation of a new footway along the western side of the A4155 between the southeastern corner of the site and a new crossing point to the War Memorial traffic island at the junction with Station Road. The relevant lengths of the A4155 and Station Road are subject to a 30 mile per hour speed limit.

On 30 October 2013 South Oxfordshire District Council (“the Council”) refused the application for outline planning permission on seven grounds. Two of the grounds related to highway issues, but they do not relate to route A.

In April 2014 Mrs Engbers commissioned a road safety audit. The safety audit contained the following relevant passages:

Mrs Engbers’ designers responded to the safety audit in a separate document also produced in April 2004. Paragraph 2.1.2 read as follows:

In other words, the designers did not follow the recommendation to carry out speed checks, but left it to the highway authority to pick up that baton. Paragraph 2.2.2 said:

In preparation for the appeal, and in accordance with rule 15, the Council and Mrs Engbers’ consultants prepared a statement of common ground in March 2014. Paragraph 8.3 of that statement recorded the agreement between the Council and Mrs Engbers’ consultants that “safe access can be provided into Shiplake for pedestrians with a new footpath along Reading Road.”

In the meantime, between 14 and 23 June 2014, a number of local residents (and the Shiplake Parish Council) sent written representations to the Planning Inspectorate objecting to the development. It is clear from those representations that the local residents and the Parish Council did not agree Route A in principle. On the contrary they opposed it vigorously. I quote some extracts from the residents’ written representations:

It is near a double bend/chicane at the Shiplake War Memorial crossroads junction, this being the location of many road traffic accidents and a fatal road traffic accident in 2006”

There are many others in the same vein. The Shiplake Parish Council’s letter included:

At some point (but we do not know when) these representations were passed to the developer. This was followed by a further statement of common ground with the highway authority (Oxfordshire County Council) on 30 July 2014. Paragraph 1.3 of that statement recorded that “there are [no] highway related matters which remain unresolved.” Route A (referred to in that statement as “Access Point 4”) was dealt with in a number of paragraphs. At the end of paragraph 4.1 of the statement it was agreed that:

Paragraph 4.3 stated:

Paragraph 4.8 of the statement of common ground dealt with access point 4 in the following terms:

Paragraph 5.5 and 5.6 dealt with the proposed new footway alongside Reading Road in the following terms:

Paragraph 5.8 said:

Paragraph 5.9 of the statement reads:

Paragraph 7.6 of the statement dealt with the statement of draft conditions. The highway authority and the developer proposed that a condition should be imposed requiring development to be carried out in accordance with drawings which included the proposed footway route A. Draft condition 5 read as follows:

Incorporated as an Appendix to the statement was the highway authority’s earlier response to consultation which stated that it would be appropriate that, if planning permission were to be granted, “a suitably worded Grampian condition places a requirement on the developer to enable local improvements that benefit pedestrian and/or cyclist movement to and from the village.”

I agree with the judge at [35] that:

In other words the two authorities had approved Route A in principle, and the details (described as “minor points”) would be worked out later, under a condition to be satisfied when seeking approval of reserved matters. It is, however, important to note that the design proceeded on the basis that drivers would comply with the 30 mph speed limit, although it is also true to say that the developer’s designers did say that “further speed tests could be carried out to obtain actual vehicle speeds” if required by the highway authority. The highway authority did not so require, so no further speed checks were carried out.

The inspector produced a pre-inquiry statement under rule 7. Unfortunately it is undated, but it is common ground that it post-dated both the statements of common ground and also the representations by local residents. The inspector’s statement outlined the main issues, based on the written evidence thus far. Those issues included:

The inspector also said in paragraph 4.4 of that statement:

Paragraph 6.1.2 recorded that the inspector had received “representations … from a number of interested parties”. He also recorded in paragraph 6.2.1 that he had received two statements of common ground, namely one between the council and the developer and the other between the highway authority and the developer.

Despite the existence of this common ground, and in particular the statement that “there are [no] highway related matters which remain unresolved”, the inspector said that the main issues included “the safety and convenience of users of the highway and other public rights of way”. He had also referred to the fact that he had received a very large number of representations from interested parties and repeated that he would take them all into account. Since there was no issue as between the developer and either the Council or the highway authority about highway matters, it seems to me that the only way in which the inspector’s statement could reasonably have been understood is that the highway issues were those raised by the local residents and the Parish Council, particularly in the light of the fact that he said in terms that he was going to take into account all the written representations.

It was in the light of that statement that proofs of evidence were prepared in accordance with rule 14. Mrs Engbers’ highway consultant, Mr Farmery, did not produce a proof of evidence and was not initially tendered as a witness in support of the appeal.

When the inquiry opened in accordance with his duty under rule 16 the inspector repeated orally his description of the main issues which, once again, included the safety and convenience of highway users. A number of the written representations had referred to the lack of visibility at the Shiplake War memorial; and the letter from Lower Shiplake Parish Council had specifically flagged up both speeding and also the combination of “traffic speed and volume and visibility”. The chorus of protest from local residents largely focussed on the perceived danger of the pedestrian crossing at the War Memorial. In my judgment it ought to have been clear enough to the developer that these would be among the issues that the inspector would take into account in line with his announcement at the opening of the inquiry.

The inspector also said that he had some questions about highway matters and was told to put them to the Council’s witness in the first instance.

Those questions included questions about the speed check recommended by the road safety audit, in response to which he was told that the design assumed a speed of 30 mph. He also asked about where there might be a more appropriate place for the pedestrian crossing. He also queried the size of the visibility splay at the pedestrian crossing. The Council’s witness could give no answer. When Mr Thomas, the representative of the Parish Council, came to give evidence on 11 December he queried the adequacy of the pedestrian crossing for “parents with kids” and he told the inspector that cars did not follow the speed limit. He also said that the pedestrian route to the site “peters out at [the] memorial” and that pedestrians “would find it difficult to cross both carriageways”.

In the event Mr Farmery was called to give evidence at the inspector’s request. That in itself ought to have alerted the developer to the fact that the inspector was taking the residents’ concerns seriously. Mr Farmery appeared on the following day. In the course of his evidence in chief he was asked about pedestrian safety and said that the ghost island was there to allow crossing safely in two stages. The point that the road was dangerous was put to him, and he said that he disagreed, giving reasons for his disagreement. He thought that although drivers saw no need to adhere to the speed limit, the development proposals would improve things. In response to the inspector he confirmed that the main intended pedestrian route would be the crossing at the War Memorial. The inspector also asked him about the crossing at the War Memorial and how that would impact. Mr Farmery’s response was that every site was looked at on its own merits but that there might be an option to move the crossing to the north. However he said that the bend reduced speed so that it was better to leave it where it was. Mr Thomas asked him about the pedestrian crossing to which Mr Farmery replied that it would not have impact and would be subject to detailed design. Mr Thomas also asked him about the island and Mr Farmery said that it was sized to accommodate a pushchair or cyclist. The inspector asked Mr Farmery why there was no refuge at the memorial crossing point, to which the latter replied that the sinuous alignment of the road meant that vehicle speeds were lower. There was also discussion about the size of the visibility splay. Mr Farmery pointed out that it had been agreed with the council that the visibility splay at the memorial crossing point was “OK”, but he added that it would be possible to achieve a visibility splay of up to 53 metres. He also explained that the drawings were outline drawings only. He repeated his points in subsequent answers, concluding that it was safe to cross with appropriate visibility. He also produced a technical note, and came back to the inquiry on 17 December to answer the inspector’s questions about it. That second appearance was concerned with the main vehicular access to the site rather than with the pedestrian crossing at the War Memorial.

On the final day of the inquiry the inspector made a site inspection, and the proceedings then resumed for final statements.

As foreshadowed the inspector did indeed take into account the views of local residents and the Parish Council, even though there were no highway issues as between the developer and the authorities. In paragraph 26 of his decision letter he said:

Having identified route A he explained his conclusions on highway safety as follows:

At [25] the judge referred to what he called:

Put in these stark terms I do not agree. Whether the inspector must give the participants an opportunity to deal with the issue depends on why the inspector departs from the statement of common ground. I think that the judge recognised this in the next part of the same paragraph in which he 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. Thus the only question, as I see it, is whether on the facts of this case the third parties’ representations and evidence, coupled with the inspector’s own conduct and questions, meant that Mrs Engbers or her team ought reasonably to have been aware of the significance of the question of road safety and in particular the safety of the pedestrian crossing at route A.

It must be borne in mind that in reaching his conclusion the judge did not have the benefit of the inspector’s contemporaneous notes of the inquiry.

The judge was dismissive of the inspector’s rule 7 statement which said that “safety and convenience of highway users” was a main issue. He said at [62]:

I respectfully disagree. Given that the developer and the highway authority had agreed that there was no problem about safety, the flagging of road safety as a main issue must have meant that there was every possibility that the inspector would depart from the statement of common ground in some respect. Against the background of the representations of local residents which, for the most part, emphasised the difficulty for pedestrians in crossing the road at the War Memorial, pedestrian safety in crossing the road ought to have been seen as a significant possibility. That this was an issue cannot be said to have come as a bolt from the blue. Moreover the specific points that concerned the inspector were put to the Council’s witness (and hence into the public arena) on the first day of the inquiry. That in itself ought to have alerted the developer to the questions that the inspector needed answered; and if there had been any doubt about that the fact that the inspector asked for Mr Farmery to attend the inquiry would have dispelled it.

The judge considered the representations made by local residents but said at [68]:

I think, with respect, that this overlooks the consensus among the local residents of the danger of the road, and the difficulties that pedestrians would have in crossing it at the War Memorial. It is unrealistic to expect local residents who may be keenly interested in a development to deal with technical detail such as the size of visibility splays. The judge commented:

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, especially where, as here, the inspector has said (twice) that road safety was a main issue. I have set out a number of passages from the evidence to show that the question of the safety of pedestrians especially at the proposed crossing at the War Memorial was raised during the inquiry, and that the developer’s assumptions about road speeds were also challenged. It is also clear from the inspector’s notes of the inquiry that he also followed up the concerns of the local residents, in particular on the subject of traffic speeds and visibility at the War Memorial crossing point. I have no doubt that Mr Lockhart-Mummery is correct in saying that local residents take a number of points, good, bad and indifferent, but the bad or indifferent points will have been filtered out by the inspector’s own description of what he or she perceives to be the main issues. That just leaves the points that are potentially good ones.

Mr Farmery said in his evidence before the court that the inspector had not asked whether further speed checks could be carried out; and that if he had then they could have been done. However, I do not consider that it was the inspector’s duty, in the context of the more formal and adversarial context of an inquiry, to assist one party to repair holes in his case. The road safety audit had recommended carrying out speed checks, but that recommendation had not been followed. The residents had themselves raised the question of traffic speeds, and it would have been open to Mr Farmery to have carried out further speed checks before the inquiry took place. Alternatively, knowing that during the inquiry itself the inspector was concerned about the assumptions of speed underlying the design, Mr Farmery could himself have offered to carry out further speed checks. Moreover, if further speed checks had been carried out after the conclusion of the inquiry it might have led to an application to reopen the inquiry.

Mr Lockhart-Mummery submitted that since Mr Farmery’s second appearance at the inquiry was concerned only with the main access to the site, the developer could reasonably have thought that although the inspector might once have had concerns about the pedestrian crossing, those concerns had been satisfied and, if they had not, the inspector was duty bound to make that clear. I disagree. As Jackson LJ said in Hopkins, the inspector is not required to give the parties regular updates about his thinking. Indeed he may not have reached any conclusion at all on a particular issue before the end of the inquiry. Nor is the inspector required to give advance notice that he proposes to reject one party’s evidence in favour of another party. The decision letter is the appropriate place for the inspector to explain why he has reached the factual conclusions that he has.

Finally Mr Farmery made some points about what happened at the site inspection. He said that he had identified an alternative crossing point to the inspector; and that he offered to measure the extent of the visibility splays. I do not consider that there is anything in this point. It is not the purpose of the site visit following an inquiry to receive any further evidence. Its purpose is to inform the inspector’s appreciation of the evidence given at the inquiry.

I therefore agree with Mr Kimblin QC that on the particular facts of this case the question of highway safety and in particular the safety of the pedestrian crossing at the War Memorial was sufficiently raised both before and at the inquiry both by local residents and by the inspector himself as to acquit the inspector of any procedural unfairness.

However, there was a second ground of challenge, namely that the inspector did not consider whether the problems could be overcome by the use of a Grampian condition. The way that it was put in the grounds of challenge was:

What the inspector said on the topic of conditions was this:

The judge dealt with this ground of challenge separately but treated it as part of the overall complaint about procedural fairness. What he said was this:

He did not in terms deal with the alleged inadequacy of reasoning.

Mr Lockhart-Mummery submitted that the Secretary of State had not appealed against this ground for quashing the decision. Certainly, in my judgment, a reading of the grounds of appeal, which do not mention the question of conditions, does not suggest that he did. Those grounds are all concerned with the judge’s discounting of the views of local residents, but as the judge pointed out none of them raised the question of conditions. The imposition of conditions was inherent in the statement of common ground between the developer and the highway authority, and a Grampian condition was specifically mentioned in the highway authority’s consultation response. Mr Kimblin submitted that success or failure on ground 1 carried with it success or failure on ground 2. I do not agree. The ground of challenge based on the lack of consideration of a Grampian condition was not only based on procedural fairness. It was also based on inadequacy of reasons. Had the Secretary of State made it clear that he was appealing against the judge’s order on this ground too, the developer would no doubt have served a Respondent’s Notice seeking to uphold the judgment on that point on the alternative pleaded grounds of challenge. I do not consider that it is now open to the Secretary of State to appeal against the judge’s conclusion on that question.

That being so, it seems to me that although the Secretary of State succeeds on the first ground which was argued, the judge’s order must stand, with the result that the appeal must be dismissed. It was common ground that under rule 20 of the Rules it was a matter for the Secretary of State to decide how the appeal should be dealt with going forward.

I agree.

I also agree.

After these judgments were circulated in draft Mr Kimblin applied to re-open our decision on Ground 2. We decline to do so. It was clear from the skeleton argument served on Mrs Engbers’ behalf that her team took the view that ground 2 formed no part of the appeal; and Mr Kimblin did not contradict that until the point was put to him by the court. It is too late to raise it now.