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Cases

How can developers avoid procedural unfairness pitfalls?

04.02.2019

Oil and gas company Ineos Upstream submitted a new traffic management plan to the Planning Inspectorate and the Council but not to third parties, who received it by email two weeks prior to inquiry opening and placed on the Council's website. The local residents (who were not a "Rule 6" party) sought an adjournment from the Inspector, which was refused.

In resolving the subsequent claim, Mrs Justice Andrews made a number of important observations about the application of the law on procedural fairness to third parties at a planning inquiry:

  • The considerations of procedural fairness should apply to all those who are entitled to have a say at a planning inquiry, not just the claimant and appellant or anyone with formal "Rule 6" status (para.11).
  • Any procedural unfairness which might have occurred at the inquiry can't be corrected by simply giving the objectors an opportunity to make further submissions at a later stage when conditions imposed on the grant of permission fell to be discharged (para.63).

Paragraph 58 is particularly relevant because the Judge provides useful guidance on what is required to satisfy the second limb of Jackson LJ's test in Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ. 470 at [62]: just what is "a reasonable opportunity to adduce evidence and make submissions in relation to [the opposing case]".

"The question whether someone has had a fair opportunity to respond to new evidence will depend on the following factors:

i) the nature, volume and complexity of the evidence in question,

ii) its importance to the issues to be determined on the planning application or appeal, as the case may be;

iii) how much time that person in fact had to assimilate and understand the evidence and to prepare a response to it (irrespective of whether he actually availed himself of that time);

iv) the resources available to the party concerned and whether they had access to relevant expertise. A lay person is likely to need longer to digest and assimilate information of a technical nature and respond to it than someone who has access to expert assistance, but how much longer will naturally depend on the nature of the information and its impact on the applicant's proposals.

v) what responses the party concerned was able to put forward in the time that they were given, and

vi) what else they might have said or done if they had been given a longer time to prepare their response.

The last of these factors is also relevant to the issue of whether there has been material prejudice."

Comment

This case shows the expectation of the Courts is that third parties are also entitled to expect compliance with the Hopkins rules on procedural fairness.

Appellants should have the Judge's first four criteria well in mind when resolving how and when to introduce further evidence to an appeal. Appellants wishing to submit new evidence should take care to ensure it is available for public inspection, normally via the local authority's website.

Alternatively, they could undertake consultation of the original consultees themselves, although that is often a time-consuming and expensive exercise best reserved for situations where the new material amounts to a significant alternation of the scheme and the local authority will not consult themselves.

A full copy of the judgment is available here.

Ashley Bowes (instructed by Anna Dews of Leigh Day) appeared for the Claimant.