Resolving allegations of procedural unfairness on the part of Planning Inspectors – any place for cross-examination?

18 Sep 2018

Planning and Environment, Public Law and Judicial Review

The Court has dismissed a challenge to the decision by a Planning Inspector to refuse an appeal against an enforcement notice in respect of the creation of a residential dwelling (Benson v SSCLG [2018] EWHC 2354 (Admin)). The Appellant contended that the Inspector acted unfairly in refusing to accept late evidence submitted by the Appellant at the inquiry and failed to provide adequate reasons for doing so.

It had been decided at a preliminary hearing ([2018] EWHC 700 (Admin)) that the Inspector should be made available for cross-examination at the substantive hearing to resolve the allegation of unfairness.

However, having heard evidence from the Planning Inspector and others, the Court found that there had been no ‘application’ for the admission of late evidence (as was asserted by the Appellant) and that the contested documents were simply used by the appellant as an aide memoire.

There having been no application, nor reasons to support such an application, the Inspector was not required to deal with the point substantively in the decision letter. In any event, the Inspector’s assessment of the documents would not have been materially different if they had been formally in evidence before him.

The Court noted the case of R (Jedwell) v Denbighshire CC [2015] EWCA Civ 1232; [2016] P.T.S.R. 715, and affirmed the general position that it is undesirable to order cross-examination of a person holding a quasi-judicial office. Deciding whether cross-examination should be allowed need to be approached with a clear view of the nature of the proceedings in which it is said to be necessary.

The Judge hearing the substantive appeal questioned whether the Judge hearing the preliminary application had erred in allowing the application for cross-examination of the Inspector. The issue raised by the grounds was not the impact that the extra material might have had on the Inspector’s decision.

The primary question was whether the Inspector erred procedurally in refusing to consider the extra material. If, and only if, he made that error could it be right to consider whether the extra material might make a difference to the outcome; thereby justifying cross-examination.

Jack Parker acted for the Secretary of State.