New Material in Written Representations Appeals - A Cautionary Tale
April 4th, 2012 by Louise Humphreys
Posted In: Planning
The Court of Appeal - Ashley v Secretary of State for Communities and Local Government (29 March 2012) - has recently quashed a planning appeal decision because it considered that there was a breach of the rules of natural justice in the way in which the written representations procedure had operated.
An application for housing development had been refused planning permission by the local planning authority against the planning officer's recommendation. One of the reasons for refusal related to an adverse impact on amenity including noise transfer due to the proximity of a driveway and surface car parking to a specific existing residential property.
An appeal was lodged and proceeded by way of written representations. The developer served an expert noise report as part of the written representations at the 6 week stage, which as readers will know is the deadline by which any interested third parties have to lodge their representations with the Inspectorate. The Inspector in his decision had relied on the noise report and the absence of any response to it.
The Claimant contended that there was a breach of the rules of natural justice because he did not know of the existence of the noise report despite his being an interested person particularly affected by the issue it addressed. At the High Court his claim failed because the judge decided that it was incumbent on interested persons to inspect the planning file and had he done so he could have sought permission to comment on the new evidence.
However, the Court of Appeal overturned this decision and quashed the Inspector's decision. It held that there had been a breach of the rules of natural justice and that it was incumbent upon the Inspector to consider the fairness of the situation created by the reliance on noise evidence at the stage of the written representations procedure when any interested person's opportunity to comment had expired.
Pill LJ also suggested that the planning inspectorate's guidance (PINS 1/2009) should be reviewed to help prevent potential unfairness to interested persons arising in written representations appeals.