Inspector’s decision to uphold refusal of planning permission by South Somerset Council quashed at High Court

Thu, 27 Jun 2013

QC and barrister from No5 Chambers secure victory for Hopkins Development Ltd – decision handed down 25 June 2013.

Jeremy Cahill QC and Satnam Choongh of No5 Chambers have today (25 June) secured victory for their client, developer Hopkins Development Limited, in a challenge to an Inspector’s decision to refuse outline planning permission for a development of 58 dwellings on land adjacent to the cottage hospital outside of Wincanton.  

Mr Cahill QC and Mr Choongh brought the challenge under Section 288 of the Town and Country Planning Act 1990, arguing that the Inspector’s decision was a breach of the Rules of natural justice because the inspector had decided the case on the basis of new issues which she had not communicated to the parties. His Honour Judge Denyer QC agreed and quashed that decision.  

The background to this case goes back to 12th October 2011 when South Somerset Council rejected Hopkins’ application for planning permission on six grounds.  These were:
1.    The 58 dwelling proposal was not needed in relation to the five year supply of housing
2.    There was insufficient provision for onsite public open space
3.    The proposed development would have an adverse effect on the amenities of existing residents and users of the hospital
4.    The danger of noise and odours from a proposed pumping station
5.    The development would be accessed via the hospital site, generating traffic levels posing a threat to safety
6.    Information regarding the proposed development’s impact on local facilities, including schools and colleges was inadequate

Hopkins lodged an appeal and a local inquiry was scheduled for 3rd July to 6th July 2012. As required by Inquiry procedure rules, Hopkins and the Council agreed a Statement of Common Ground and this was submitted to the Inspector and statutory parties in advance of the inquiry. It was agreed in this Statement that 2, 3 and 4 of the six grounds for refusal were no longer being contested by the Council. It was further agreed that Council had no landscape-based objections to the proposal and that the site was in a sustainable location.  

A few weeks before the start of the inquiry the Inspector issued a note to the parties entitled "Inquiry Procedure Advice Note". She said that “on the basis of material seen to date, I consider that the Inquiry should focus principally on the following matters:” She listed five matters, and these did not include "the effect of the proposal on the character and appearance of the area" or "whether the site is in a sustainable location". Hopkins’ submitted evidence addressing the five matters listed by the inspector in her note.

When the Inquiry opened the inspector identified what she said would be the “main issues” that the inquiry would address. Once again, she did not list "the effect of the proposal on the character and appearance of the area" or "whether the site is in a sustainable location".  It was clear from the Inspector’s “main issues” that only points 1 and 5 remained to be examined, i.e. whether the proposal was needed in relation to the five year supply of housing and the impact of the volume and movements of traffic via the hospital to and from the proposed site on highway safety.

The Inspector published her decision on 29th August 2012, and in relation to point 1 she found against the Council as it failed to demonstrate a five year supply of deliverable housing sites.  She found against Hopkins in relation to point 2, and concluded that the proposal would have a negative impact on safety of motorists, pedestrians and the running of the hospital. Critically, however, in deciding whether the appeal should be allowed the inspector ruled that the proposals would have an adverse effect on the character and appearance of the area and that the site was in an unsustainable location. 
Mr Cahill QC and Mr Choongh argued that it was unfair for the inspector to base her decision on what were completely new issues. HHJ Denyer QC noted that the Secretary of State acknowledged that the Inspector had not identified these issues before or at the inquiry.  In addition, it was accepted that these issues had been agreed in a Statement of Common Ground. 

His Honour Judge Denyer QC said the issue for him was whether at the planning appeal Hopkins could “reasonably have anticipated that an issue had to be addressed because it might be raised by an inspector”.  Drawing upon an earlier judgment, the judge said “If a party to an inquiry reasonably believes that a matter which was in dispute has been dealt with by way of agreement in a statement of common ground, it may well be unfair to allow the apparently agreed issue to be reopened without giving the party a proper opportunity to address the issue”. 

HHJ Denyer QC therefore posed the question “Did the Claimant (Hopkins Development Limited) have a fair crack of the whip?”  He ruled that, in the light of the Statement of Common Ground “it was wrong for the inspector to raise and take into account the effect of the proposal on the character and appearance of the area and whether the site was in a sustainable location”.  HHJ Denyer decided that the inspector had failed to alert the parties that she regarded these matters as significant and had failed to provide an opportunity to address them. The appellant had not been given “a fair crack of the whip”.

HHJ Denyer QC emphasised that the requirement for those involved to concentrate on disputed matters would be frustrated if they still had to consider issues that had notionally been dealt with in a Statement of Common Ground. He therefore concluded that “the failure of the inspector in this case to indicate whether before, during or after the hearing that she was minded to rely upon ‘fresh grounds’ did constitute a breach of a basic natural justice requirement, namely that a party should have a reasonable opportunity of addressing the issues which are going to be determinative of a judicial proceeding”.  

The judge ruled that the inspector had breached the Rules of Natural Justice and quashed the inspector’s decision. 

Jeremy Cahill QC and Satnam Choongh were instructed by John Bosworth of Ashfords LLP on behalf of the Claiment. Jeremy Cahill, QC is head of the Planning and Environment Group at No5 Chambers.  This set offers a national planning service and is home to “some of the finest barristers in the country”, according to Chambers UK 2011.  Chambers explains that No5's planning team is founded upon “a specialist team that can act on any planning issue that comes its way”. 

The Chambers UK Directory notes that Jeremy Cahill QC has “a huge following thanks to his advocacy skills and brilliant understanding of the planning system”, and describes Satnam Choongh, a specialist in planning and environment cases, as “very sharp”, “extraordinarily bright” and someone “who gets the answers he needs from cross-examination”. 

Anyone wishing to know more about No5 Chambers’ Planning and Environment Group should visit http://www.no5.com/areas-of-expertise/planning-environment-law/ or telephone 0845 210 5555.

 

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