In Ashley v Secretary of State for Communities and Local Government (Pill LJ, Hallett LJ, Patten LJ) 29/03/2012, the Court of Appeal held that there had been a breach of natural justice in the way in which the written representations procedure had operated.
The case concerned a housing development which had been refused planning permission by the local planning authority against the planning officer’s recommendation. One of the reasons for refusal concerned the adverse impact on amenity including noise transfer due to the proximity of a driveway and surface car parking to a specific existing residential property.
In the written representations procedure the developer served an expert noise report at the 6 week stage which was the same time as the deadline for interested persons to comment. The Inspector in his decision had relied on the noise report and the absence of any response to it.
Mr Ashley contended that there was a breach of natural justice because he did not know of the existence of the noise report despite being an interested person particularly affected by the issue it addressed. At first instance, 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.
The Court of Appeal overturned this decision and quashed the Inspector’s decision. It held that there had been a breach 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 interested person’s opportunity for 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.
Dan Kolinsky (instructed by Richard Buxton solicitors) represented Mr Ashley in the High Court and Court of Appeal proceedings.