QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|(1) SANDRA SAN VICENTE|
|(2) GERALD CARDEN||Claimants|
|(1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT|
|(2) UTTLESFORD DISTRICT COUNCIL|
|(3) TAYLOR WIMPEY UK LIMITED||Defendants|
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Mr Richard Kimblin (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Mr Stephen Whale (instructed by Berwin Leighton Paisner) appeared on behalf of the Third Defendant
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"The [Secretary of State]'s decision was unlawful by reason of procedural unfairness, namely the failure to ensure that all parties were notified of the hearing in accordance with the Town & Country Planning (Hearings Procedure) (England) Rules 2000 and having discovered a complete absence of notification of concerned residents, his failure to re-start the inquiry with a new Inspector."
"The site lies outside the development limit where in accordance with Uttlesford Local Plan Policy S7 the countryside is to be protected for its own sake, the countryside will be protected from development unless it needs to be there or is appropriate to a rural area. The proposal would involve the erection of market housing which is not an appropriate form of development in the countryside, does not need to be there and would not protect the character of the countryside. The level of development proposed would be harmful to the character of the area. It therefore fails to comply with Policy S7 of the Uttlesford Local Plan."
"The proposal would give rise to unacceptable level of road safety and traffic generation which would compromise the safety and convenience of users of the highway. It therefore fails to comply with Policy GEN1."
So far as that is concerned, there was evidence produced from the Highway Authority which indicated that various models and tests had been undertaken which satisfied the Highway Authority that there would be no generation of an unacceptable level of traffic which would or could compromise the safety and convenience of users. That was not a matter which objectors accepted, but of course it was a formidable barrier to any objection they raised on that score being accepted by the inspector and prevailing. Nonetheless, it was a matter which clearly they were interested in raising.
"The Hearing Rules permit the Inspector great discretion in the manner in which they conduct a hearing. It is custom and practice that s/he briefly summarises the parties' cases at the opening and seeks their confirmation that s/he has understood them. S/he will then ask a series of structured questions of each party's witnesses, ensuring that opposing parties are permitted to respond on the answers to those questions. I recently asked a sizeable number of Inspectors whether they follow my approach, which is once a question or a topic is 'on the floor' I allow a debate to take please between the relevant witnesses and/or the witnesses to ask one another question (ie rather than require that all evidence is given 'through' the Inspector). The great majority confirmed that they do. Provided that the Inspector maintains firm control and authority, ensures that interested parties (who are likely not to be experienced either in planning matters [or] participating in public tribunals) are brought properly into the proceedings, and keeps the discussion to the point, that seems to be best practice."
It certainly appears that the inspector, broadly speaking, followed that when conducting the hearings before him.
"The circumstances of this reconvened Hearing are unusual... We consider it most important that the parameters for the new Hearing are clearly understood by all parties... The intention is to clearly establish the rules to be followed at the reconvened Hearing so that the procedure remains fair to all...
The second paragraph of your letter states that the intention is 'to enable any interested parties to be able to listen to all the evidence and to be given the opportunity to comment at the Hearing'.
2. Can the Inspector confirm that the oral evidence presented by both parties at the original Hearing remains part of the evidence on which he will take his decision?"
"... it would not be in the interests of openness, fairness and impartiality if the appeal decision in this case was based on proceedings which took place without the public being present. Therefore, in principle, it will be necessary to re-run the Hearing in the same form as the event which took place on 11 and 12 April, and the same agenda will apply. However, the procedure to be adopted will be dependent on the nature and extent of public attendance, and the Inspector will discuss the details with all those present at the start of the resumed event. In common with normal procedure, the main parties should rely on the case provided in their statements, and the Inspector will not expect new material to be put forward."
"The role of local residents in shaping their environment is recognised in the Framework, and it is understood that a neighbourhood plan is in the course of preparation. However, neither this, nor the development plan documents setting out the allocation of land, have reached a stage where significant weight may be applied to their proposals. In the meantime, there remains a need to provide a continuing supply of residential land."
It is submitted that that is an approach which could have been challenged because, as I say, it was not necessary as at June 2012 for this site specifically to be allocated for development in advance of the general allocation.
"3. It is my strong belief that the Inspector carried out the second hearing in a rigid fashion that disadvantaged the residents present. He made no attempt to assist the residents in engaging with the issues. In fact, the Inspector concluded the formal hearing in barely half the time of the first appeal hearing despite there being extra people involved. Cllr Ranger and I endeavoured to make points regarding housing supply and numbers and the Local Plan but felt that some of the points being raised by the developer were technical and complicated and would have been difficult for the local residents to comment on without it being explained properly. I can confirm that arguments relating to this that were played out in full at the first appeal hearing were not played out in full at the second hearing."
It may be that perhaps one should not attach a great deal of weight to that because it is disputed by the inspector, and certainly the notes do not indicate that the matters were not permitted to be dealt with; however, it is the perception that is or can be important. He goes on in paragraph 4:
"A particular point that illustrates this is that at the first hearing was discussion on the local residents' preferred areas of development. At a local planning meeting, residents had identified, by placing red and green dots on a map, areas of the town where they would accept development. This plan was produced at the first appeal hearing but not at the second appeal hearing. This was even though local residents tried at the second meeting to make the same point to the Inspector. It would likely have carried more weight and mutual understanding with the plan available."
That is a matter which I have already referred to. But, as it seems to me, it is a matter which must carry some weight because it does show that on the face of it there is some substance in the concerns by the objectors that matters were dealt with in a fashion which appeared to them to be somewhat too expeditious in comparison with what they subsequently learnt had been the position at the first hearing.