An Inspector Calls (it wrong)

Sue Chadwick analyses a spate of recent rulings where judges have criticised planning inspectors' decisions.

2015 has not been a good year for the Planning Inspectorate, with four decisions coming in for various levels of judicial criticism in the space of one month.

Hopkins Homes[i]  involved a challenge to a decision to dismiss an appeal against refusal of permission for a residential development of 26 dwellings, associated access and landscaping. The site was the only one within the village of Yoxford identified as having development potential.

The inspector refused the application on the basis that the negative aspects of the development were not outweighed by its acknowledged benefits, but in reaching this decision he made a number of errors. The primary error was his treatment of two of the Local Plan policies, where he wrongly assumed that one of them was not relevant to housing, and failed to categorise both as out of date in terms of the National Planning Policy Framework (NPPF) because of the lack of any objective housing need assessment. As a result they were given too much weight and the NPPF itself too little – what Justice Supperstone referred to as "a fundamental misdirection as to the Framework".

This error alone was enough for the judge to quash the decision, but the errors were further compounded by: (1) the inspector’s assumption that the appeal site was outside the physical limits of Yoxford, when in fact the plan was out of date pending adoption of a new Proposals Map; and (2) the lack of a proper assessment of heritage assets as required by paragraph 135 of the NPPF.

In the Carroll case[ii] the appeal involved the grant of permission on appeal for a change of use from office to residential, and was dealt with through written representations. The original application was for a change of use from office use Class B1 to residential use Class C3. On 28 May, well after the time limit for making formal representations had expired, the agents acting for the applicant advised the Inspector that the current lawful use of the building was B8 (storage). The assertion was based on an officer report prepared in relation to a second application stating that the current use of the building was, on balance, B8. 

The application was refused, but the change use was accepted without question by the inspector and when the decision was issued in July 2014 it referred to the lawful use of the building as B8. The change was significant as it altered the policy context for determination of the application as a whole. However, neither the council nor Mr Carroll were aware of the altered context and neither were given an opportunity to make representations on it.

Justice Supperstone also dealt with this matter and he ruled that: (1) the change was ‘plainly material’ to the decision and that the failure to advise all parties of the submission and facilitate comment on it was unfair, and caused ‘substantial prejudice’; (2) it was unlawful to amend the description of the use without advising all parties and giving them an opportunity to comment; (3) by failing to investigate the outcome of the second application the inspector made his decision without regard to a significant material consideration.

The decision was quashed on the basis of these errors and the resulting prejudice to the claimant.

In a case involving Cheshire East Borough Council[iii] the inspector was criticised for the way in which he interpreted and applied housing policies when allowing an appeal by Richborough Estates against the council’s refusal of permission for 146 new homes. In refusing the application, the council relied partly on policy NE.4 that sought to protect ‘Green Gaps’ between settlements. 

The Inspector concluded that policy NE.4 was relevant to housing supply and that it was also out of date in terms of paragraph 49 of the NPPF because of the absence of a 5-year supply of deliverable housing sites. However he also concluded that the same policy had a wider purpose in maintaining gaps between settlements, and gave it full weight in assessing the adverse effects of the development proposed. The effect of this approach, as the judge recognised in paragraph 61 of her judgment, was that the policy was disapplied in one context and given full consideration in another. 

Justice Lang identified two errors in this approach: First; NE.4 was not a housing supply policy, and should not have been assessed as such. Next, it was wrong to attribute a dual effect to the policy and apply it inconsistently: “a policy such as this one cannot be divided, according to its perceived purposes. It either comes within paragraph 49 or it does not…it was an error of law to seek to divide the policy, so as to apply it in part only.” The judge could not conclude that the errors made no difference to the decision, and ruled that the appeal should be considered again.

In contrast with the preceding cases, in the Turner[iv] case the Inspector’s decision survived, although it was heavily dependent on an assessment of the particular circumstances made by Justice Collins.

Mr Turner objected to an application to redevelop the Shell Centre in London for office retail and residential uses; applications were called in for determination by the Secretary of State. He challenged the decision to grant permission for this development on a number of grounds, the most notable of which related to the conduct of the inspector, including:

• The initial willingness of the inspector to remove the requirements for statements of case and summary proofs. Although the inspector changed his mind on both issues after representations from objectors, the judge was clear that this was "a breach of the Rules and so a clear procedural impropriety";
• ‘Counting down’ minutes left for objectors and local authority officers for cross-examination of witnesses and cutting them off when time was up but allowing extra time for counsel representing the developer;
• Interrupting Mr Turner during his cross examination and expressing assumptions about how the case would be expressed;
• Generally giving an appearance of hostility towards any party objecting to the development;
• Making comments about the scheme and the evidence that appeared to indicate that a pre-judgement of the merits had taken place.

A statement submitted by the inspector stated that his interventions were justified given that Mr Turner was not a trained advocate or witness, but this statement was at odds with the judge’s own impression of Mr Turner as someone with "considerable expertise"[v].

The judge had to consider whether the Inspector’s conduct gave rise to an appearance of bias sufficient to invalidate the decision. He acknowledged that the conduct gave rise to "real concern" that the inspector "mismanaged" the inquiry, with decisions being made in an "unacceptable" manner and that his conduct "fell short of that which should have been displayed". 

However, applying the established tests for whether bias existed – whether having regard to all the circumstances a fair minded observer would conclude that there was a real possibility that the inspector was biased – the judge was not persuaded that it was met. Nevertheless the judgment ended with the comment that “I have been seriously concerned at the inspector's conduct at the inquiry and I hope that steps are taken to ensure that lessons have been learnt.”  

Summary

In the first three cases (two of which were not defended) the errors in question led to the original decisions being overturned. In the Turner case, the decision survived, thanks to a favourable evaluation by the judge of the particular circumstances. This begs the question of whether a local authority planning authority whose officers or members acted with equivalently poor levels of conduct and behaviour have benefitted from a similarly benign approach. And in the wider context, are these decisions simply a run of poor form for the Inspectorate or part of a more serious malaise?

Sue Chadwick is a solicitor and Corporate Growth Manager at Cambridge City Council. She can be contacted on 01223 457445 or This email address is being protected from spambots. You need JavaScript enabled to view it..