England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		The Court House Oxford Row Leeds LS1 3BG
		23 October 2015

Judge Behrens :

1. Introduction

1. This is an application by Mr Anderson pursuant to Section 288 of the Town and Country Planning Act 1990 and Section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 seeking to quash a decision of the Secretary of State by his Inspector Jennifer Vyse ("the Inspector") dated 20^th March 2015 which allowed the appeal by Yorkshire Water Services Limited ("Yorkshire Water") against the decision of Kirklees Metropolitan Borough Council ("Kirklees Council") to refuse planning permission and Listed Building consent for works to the grade II listed spillway at Butterley Reservoir. The decision followed a public inquiry held by the Inspector lasting 5 days from 20^th January 2015.
2. Mr Colin Anderson is a retired chartered civil engineer, with a Masters degree in Water Resources Management and some past experience of working on the design, planning, project management and site supervision of major water resource projects. He has not been an All Reservoir Panel Engineer ("ARPE") as constituted under the Reservoirs Act 1975. An All Reservoir Panel Engineer is one of 38 appointments made by the Secretary of State to inspect, design new dams and repairs and oversee remedial works to ensure the safety of dams.
3. The day before the Council's Committee met on 9 January 2014 to consider the planning and listed building consent applications Mr Anderson submitted, by email, an objection to the Council against both applications and spoke at the Council's planning committee meeting. Planning permission and listed building consent were refused.
4. Mr Anderson attended the second day of the inquiry (21^st January 2015) with a proof of evidence. The proof was divided into sections. In Section A of the proof, he set out his concerns with Yorkshire Water's conduct in developing an engineering solution. In Section B addressed engineering points raised by the proof of evidence of Yorkshire Water's engineering expert. In Section C he summarised his engineering solution to the admitted problems to the Spillway. Section C was followed by an Appendix titled 'new scheme option' set out his solution in more detail with text and diagrams. He was required by the Inspector to remove the Appendix. He was however permitted to adduce the remainder of his proof and to read out the whole of his proof except for that part of the proof which dealt with his qualifications. He was cross-examined by Leading Counsel for Yorkshire Water. He was also permitted to cross-examine Dr Hughes, the Independent ARPE who was involved in the project. The cross-examination lasted for about 45 minutes.
5. As already noted the Inspector allowed the appeal and granted planning permission and listed building consent. Mr Anderson seeks to challenge that decision on a number of grounds. The principal ground relates to the removal of the Appendix from Mr Anderson's proof of evidence and the alleged subsequent refusal by the Inspector to consider the new scheme option proposed by Mr Anderson. It was common ground before the Inspector that the proposed works involved substantial harm to a heritage asset. Mr Harwood QC submitted that the question before the Inspector was the extent to which they were necessary. Her refusal to consider Mr Anderson's option meant that her decision that the works were necessary was flawed and should be quashed. As developed by Mr Harwood QC this point was put in a number of ways.
6. Mr Anderson has a number of other procedural grounds upon which he seeks to quash the decision. He complains that he was not notified of the making of the appeal in accordance with the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 ("the Rules"). In particular he was not notified by post. Whilst he accepts that emails were sent to the email address used by him in his email objection of 8^th January 2014 he did not receive them. He did not discover about the date of the inquiry until 11^th December 2014 some 6 weeks before it commenced. He also complains that, contrary to the rules the Inspector held an accompanied site visit before the commencement of the inquiry. Overall he contends that the conduct of the inquiry was unfair.
7. Both the Secretary of State and Yorkshire Water oppose the appeal. They contend that the overall conduct of the inquiry was fair to Mr Anderson. Mr Anderson was given a reasonable opportunity to present his case. Whilst it is true that the Appendix to his proof was more detailed than Section C, Section C contained the essential features of his scheme. He was permitted to cross-examine Dr Hughes on his scheme. Dr Hughes stated that he understood it and rejected it. Furthermore the scheme was embryonic in the sense that it involved further research and investigation work and thus was not a fully worked out scheme. In those circumstances the Inspector was justified in treating it as immaterial and/or giving it no weight.
8. Yorkshire Water does not accept that there was any breach of the procedural rules. The Secretary of State accepts that there was a technical (though understandable) breach of the rule relating to the date of the accompanied inspection. Both Yorkshire Water and the Secretary of State contend that no prejudice was caused by any breach of the rules and that no unfairness was caused to Mr Anderson.

2. The facts

9. There is very little dispute as to the facts. Many of the facts can be taken from the agreed statement of facts with which I was helpfully provided and the Inspector's decision letter. There are, however, some controversial areas.

Butterley Reservoir

10. Butterley Reservoir is located just above the southern Pennine village of Marsden and is the final impounding reservoir within a chain of reservoirs along the Wessenden Brook which provide flood alleviation and supply water to Huddersfield and the surrounding area. It is designated by the Environment Agency as a Category A reservoir, as its failure would be likely to result in the loss of ten or more lives.
11. In paragraphs 20 to 22 of her decision the Inspector summarises the architectural and historic interest of various parts of the Reservoir. She drew attention to the Spillway, the Scour Portal and Back Bottom Bridge all of which are Grade II listed.
12. In essence, the spillway dates from the late 19^th century, was designed by Thomas and Charles Hawksley, noted engineers of national and international importance of the time, and is an exemplar of its type. Hawksley spillways are characteristically wide and shallow, with a sweeping curved form and a stepped base featuring cascades and stepped copings. Butterley displays all these features. Although there were some alterations in 1988 and some remedial work in 2002 the spillway shows little visible evidence of significant alteration and it remains as an impressive structure in terms not only of its scale, but also its design.
13. The scour portal is contemporaneous with the spillway and forms an integral part of the reservoir and dam. It is located immediately to the west of the spillway and is aligned with the curved termination walls at the end of the spillway channel. Its special interest and significance derives not only from its history and detailing, but also its association with the spillway and its setting.
14. The Bank Bottom stone bridge is assumed to pre-date the reservoir. It was constructed to provide access across the natural Wessenden Brook and is a relatively simple arched structure with plain parapets that continue as a boundary wall to the south-east. The bridge now marks the point at which the culverted channel of the spillway reverts to the natural watercourse of the Brook. Its significance derives from its age, materials and simple form.

Dr Hughes's inspections

15. Dr Hughes was appointed to the All Reservoirs Panel in 1991 and had, at the time of the public inquiry, over 25 years experience on the Panel carrying out inspections, designing new dams, the design of remedial works, overseeing the construction of new dams and construction works and reacting to emergency situations at dams.
16. Dr Hughes inspected and reported on the reservoir in February 1999 and 2008. During that later inspection, water was observed disappearing into the base of the masonry spillway, there was a general hollow sound from large areas of the base, movement of stones was evident, and there was evidence of previous repairs. There was also photographic evidence showing masonry that had been ripped out of the spillway channel during a relatively small (in all likelihood a 1 in 12 year) flood event in 2002. In the light also of comparatively recent significant damage to the masonry spillways at Boltby and Ulley Reservoirs during flood events, the subsequent Statutory Inspection Report recommended that a study of the flow depths, velocities and possible pressures in the overflow channel be undertaken and that an investigation be carried out into the integrity of the spillway, in particular its performance, both hydraulically and in terms of capacity, during a significant storm event.
17. A physical model of the spillway was built and tested to gain a full understanding of how it would operate in the extreme floods it must be designed to withstand. The tests showed that whilst the upper part of the spillway had sufficient capacity to pass the design flood, the walls were not high enough within the middle of the spillway, and turbulence caused by the piers projecting into the spillway (a problem that had also been observed in the model test for another reservoir) was sufficient to send water outside the channel. Both those shortcomings would lead to erosion of the fill behind the walls, cutting into the embankment fill. In addition, the two flat areas in the mid-lower section (the cascades) created negative pressures of sufficient strength to suck out the masonry blocks – the reason for the damage in 2002. In an extreme event, that could cause the collapse of the spillway which would then move back towards the reservoir. In essence, the tests showed that the spillway at Butterley would fail, under even relatively small floods. If the spillway were to break up during a flood, the structure would quickly and progressively deteriorate. If it were to collapse, or water were to leave the spillway, that could lead to the erosion of the earth dam here which, in turn, could lead to a catastrophic failure of the structure.

The Planning Application

18. Seven options were designed by Yorkshire Water to address the deficiencies of the spillway and to comply with the Reservoirs Act. These comprised options to construct a new spillway and options to modify the existing spillway. Eventually Yorkshire Water sought to proceed with option 5B described as "Reconstruction of the existing spillway structure with additional mitigation measure"
19. The Inspector's summary of the work proposed was:

"Reconstruction of a section of the masonry spillway at Butterley reservoir. The spillway is grade II listed.

•    replacement of the existing walls with new raised walls in reinforced concrete to approximately 2.6 metres high;

•    overlaying the base of the spillway with a reinforced concrete slab, complete with small steps similar to the finish of the existing base;

•    reconstruction of the existing stepped cascade section to form a constant gradient to match the upper section of the channel;

•    cladding the outside of the walls with masonry. Cladding to include the use of reclaimed masonry from existing walls;

•    stone copings on top of the raised walls. Existing copings to be reclaimed and reused on top of the new raised walls where possible;

•    using masonry effect 'formliner' on the inside face of the walls. '"

20. In paragraph 27 of her decision the Inspector considered the harm caused by the proposal:

Accordingly, having regard to the advice at paragraphs 132 and 133 of the Framework and in the Planning Practice Guidance, I am in no doubt that the harm that would be caused to the special interest and significance of the spillway could only be described as substantial. Indeed, the scale of harm in this regard was a matter of common ground. In relation to the other assets, the harm would, by and large, be to their setting and would be less than substantial.

21. There were substantial objections to the scheme. These are set out in paragraphs 27 and 28 of the Planning Officer's report. In summary there were objections from the Victorian Society and the Campaign for British Architecture. 185 letters of objection and a petition containing 43 signatures were received. Included among the objections was a group known as the Save Butterley Spillway Group ("SBS").
22. The Planning Officer recommended conditional full approval.
23. On 8^th January 2014 Mr Anderson submitted a further objection by email. He attended the meeting of the planning subcommittee on 9^th January 2014 and was permitted to address the meeting. Planning permission and listed building consent were refused. The Committee felt that the substantial harm to the spillway was not outweighed by the proposed scheme. The decision notices were issued on 15^th January 2014.

The Appeal

24. Yorkshire Water appealed on 18^th July 2014 and the matter was to be determined following a public inquiry. The Council sent an email to Mr Anderson on 8^th August 2014 informing him of the appeal. He did not see that email.

The Pre-Inquiry Meeting

25. On 1^st October 2014 the Inspector held a pre-inquiry meeting. SBS were was afforded Rule 6(6) status and thus entitled to appear and call witnesses at the enquiry. In paragraph 8 the Inspector noted that there might be local residents who would wish to address the inquiry. She gave guidance which included the following:

"Inquiries are open to members of the public and, although you do not have a legal right to speak, the Inspector will normally allow you to do so. If you wish to speak at the Inquiry, you should notify the inspectorate's case officer, Mr Kozak as soon as possible, with dates of your likely availability/non-availability.

.. Some people prefer to make, or read out, a brief statement giving their views. In such cases, it is helpful to the Inspector and the parties to have a copy of that statement in advance."

26. She also proposed an accompanied site visit to take place on 4 November 2014 some 2½ months before the commencement of the inquiry given "the location of the appeal site and the vagaries of winter weather". There was no objection to the date of the site visit and no one drew the provisions of the rules to the attention of the Inspector.

Contact with Planning Inspectorate

27. After he heard of the inquiry on 11 December 2014 Mr Anderson contacted the Planning Inspectorate's case officer by telephone. The case officer confirmed that he should have been informed about the appeals process. Mr Anderson requested the opportunity to make a submission of a written statement and speak to it at the appeal. It is common ground that the case officer at least advised that he would be able to speak to the Inquiry and that he should submit his written statement on attending the appeal. Subsequently the Inspectorate officer called with a date and time for his attendance.

The Inquiry

28. It was agreed by the Inspector and the main parties that Mr Anderson could give his evidence on the second day with the other engineering witnesses and this information was relayed to him.
29. On 21^st January 2015 Mr Anderson duly attended to give evidence with his proof. His proof had not been submitted in advance. His proof contained his qualifications which did not include any details of any work on dams or reservoirs.
30. I have noted the 3 sections of his proof. It is important to note that Mr Anderson's solution was inchoate. Thus under the heading "Carry out further research and investigation works" he suggested that the figures be revisited, that numerical hydraulic modelling be carried out using CFD, that sonic velocity testing of the spillway be carried out and that more ground work investigations be carried out. His solution involved that retaining and stitching of masonry blocks using stainless steel ties. He concluded his proof as follows:

I believe that I have found 'reasonable means' of providing spillway provision at Butterley Reservoir. In terms of cost, I believe this solution and/or its variants will economically rival YW preferred option 5b.

To assist in the endeavour to find the best engineering solution, I am prepared to provide my service for free (I have no other teaching work after 1^st February), to work collaboratively alongside a qualified engineer from YW to develop my scheme proposal and/or its variants as an engineering solution for Butterley spillway that satisfies both reservoir safety and as far as possible, landscape and heritage requirements (including the setting of the listed structure)."

31. At the hearing before me Mr Harwood QC took me through the Appendix pointing out the parts of the Appendix which were not included in the main body of the proof. However the proof contains the basis of Mr Anderson's inchoate scheme and parts of it are included in the Appendix.
32. It is common ground that the Inspector required Mr Anderson to remove the Appendix using words to the effect:

I cannot receive any new information about other new options and you must remove them.'

33. Mr Anderson was permitted to read out his proof although he was requested by the Inspector not to read out the qualification section of his proof. He was cross-examined by Mr Manley QC for Yorkshire Water.
34. In his witness statement Mr Manley QC says:

His "proof" is in effect an attack on Dr Hughes. His proof further sets out a broad alternative scheme which in essence involves re-use of the existing spillway. However it was clear that his alternative scheme was not fixed and subject to significant additional work. I began to cross-examine Mr Anderson and asked him to what extent, if any he anticipated the wall height would have to be increased. He responded by saying he would not be drawn on detail. I asked why not and he said he was not prepared to be interrogated; that more work was required and that he was withdrawing his option. He was extremely agitated. I believe the Inspector asked him if he was sure about this and he said he was.

35. Mr Manley's contemporaneous note contains the following

My (?) Option – withdrawn

+ Not prepared to be interrogated – more wk req –

I asked about wall height & he refused to be drawn

36. It is not in dispute that Mr Anderson was permitted to cross-examine Dr Hughes. In paragraphs 37 to 40 of his witness statement Dr Hughes says:

37. Mr Anderson was able to describe his alternative and I discussed that alternative with him when I was being cross-examined by him. His proposed alternative was no different to that considered during the Engineering Options Study. I explained to Mr Anderson why his alternative was not a viable solution. …

38. Mr Anderson put his alternative solution, which he had earlier declared as incomplete to me repeatedly during my cross-examination. I was not concerned it was incomplete because I was able to understand the concept he was proposing which involved pinning every block in the spillway – many hundreds of blocks. I repeatedly rejected the 'alternative' due to the risk of a single block coming loose which could then result in the whole of the spillway unravelling. It was at this point hat Mr Anderson became very emotional with my replies and suggested I was lying. …the Inspector gave Mr Anderson free reign to question me, re-question me and to ask additional questions when he appeared dissatisfied with my response.

39. Mr Anderson in his proof of evidence dismissed the Warmwitherns case history even though this is very relevant to the Butterley case and made reference to the need for doing CFD … modelling without having , it appears, any knowledge of what the BDS (British Dams Society) meeting, which was held the previous evening had concluded. During my cross-examination I made it clear that I had attended and chaired the meeting. Mr Anderson states that "good industry practice" recommends CFD modelling to be undertaken first followed by physical modelling to validate the CFD analysis. – this is not the case – it is not good industry practice.

40 I am entirely confident that the physical model directed witnessed and reviewed by myself as panel Engineer provided the correct information on which to design the way forward at Butterley.

37. The Inspector has exhibited her contemporaneous note of the cross-examination of Dr Hughes. Whilst not particularly easy to follow it shows that she permitted detailed questioning on Mr Anderson's option including CFD modelling, the hydraulic model referred to in the appendix. It also corroborates that Dr Hughes rejected Mr Anderson's model.

3. The decision

38. It is not necessary to refer to all of the Inspector's reasons in detail. However a number of points must be made.
39. In paragraph 8 she discussed her role in the following terms:

… my role in these appeals is to consider the scheme proposed on its own particular merits, not to consider whether some other option should be approved as an alternative. Those options, and other possibilities mooted at the Inquiry, are only relevant insofar as they may, or may not, provide evidence as to whether the scheme the subject of these appeals is 'necessary' having regard to the provisions of paragraph 133 of the National Planning Policy Framework.

40. In paragraph 27 she discussed the harm to the heritage assets. I have already set out her conclusion.
41. In paragraphs 37 to 44 she considers the public benefit of the proposal in the light of the Reservoirs Act 1975. She directed herself in accordance with the decision of Lang J in R (on the application of The Heath & Hampstead Society) v The Mayor and Commonality and Citizens of the City of [2014] EWHC 3868 (Admin) making the following points:

1. That Parliament had expressly conferred on Panel Engineers such as Dr Hughes the responsibility to decide what safety measures are required.

2. The relevant standard for the design a Class A Dam is that the risk of failure due to flood is virtually eliminated. This is a higher test than the test of reasonable practicability.

3. Neither the Reservoirs Act nor the ICE guidance provide for the Engineer to balance considerations of safety against other factors such as heritage factors. The only consideration under the Act is public safety.

42. In paragraphs 42 to 44 she said:

42. As set out in the Options Appraisal, and as confirmed in the evidence and cross-examination of Dr Hughes, the majority of the options assessed on a formal basis in relation to Butterley would, among other things, involve cutting through and breaching the clay core and/or the cut-off walls, introducing an increased short and long term risk of a potential flow path for the migration of water - if a leakage path is introduced around any new spillway, or any other overflow arrangement, substantial damage to the structure may ensue, posing a risk of catastrophic failure of the embankment. It is particularly difficult to measure the success of techniques such as this, other than by the detection of leakage once the reservoir has been refilled. I also understand that leaks could develop quickly, with few warning signs. Moreover, the risks at Butterley are likely to be greater than might otherwise be the case in this regard, because of known problems with the geology in this part of the valley, as encountered when the reservoir was first constructed.

43. Of the options that would not involve breaching the clay core, one involved decommissioning the reservoir. However, that would remove the flood alleviation properties of the reservoir and would have a major impact on the strategic water supply network for the Huddersfield area such that alternative provision would need to be made. The others would not meet the reservoir safety requirements.

44. Clearly, there are alternative development options that would deliver a more acceptable solution were preservation of the heritage asset the only consideration. However, the alterations proposed are required to address concerns of public safety by virtually eliminating the risk of failure. Whilst it might be that the required safety standards could, in principle, be capable of being met in more than one way, no substantiated evidence was before me to clearly demonstrate that any of the other feasible options in the Options.

43. In paragraphs 47 to 48 she drew attention to paragraphs 132 and 133 of the NPPF and the decision of the Court of Appeal in Barnwell Manor Wind Energy Limited v East Northamptonshire District Council and Others [2014] EWCA Civ 137. She drew attention to the need to have special regard to the desirability of preservation of listed buildings and their settings and that that need is to not only of considerable importance, but also attracts considerable weight in any balancing exercise. She also referred to the specific provisions.
44. She expressed her final conclusion in paragraph 49:

49. On the basis of the evidence before me, the scheme proposed virtually eliminates the risk of failure of the dam whilst retaining the flood alleviation and water supply function of the reservoir. Moreover, the original function of the spillway would be retained, as would some of its original detailing. None of the other options have been demonstrated as being as safe and would not, therefore, virtually eliminate the risk of failure. All in all therefore, having regard to the provisions of the Reservoirs Act 1975, and the duty it imposes, I consider on balance, that the appeals should succeed.

4. Legal Principles

45. A number of areas of law were canvassed during the course of the hearing:

The Reservoirs Act 1975.

46. There is a full discussion of the relevant provisions and effect of the Reservoirs Act 1975 in the decision of Lang J in Hampstead case. The relevant provisions are summarised in paragraphs 30 to 34 of the judgment. In paragraph 36 Lang J points out that failure to comply with a recommendation of the inspecting engineer is a criminal offence. In paragraphs 52 to 82 Lang J considers in detail the effect of the Act.
47. In the course of her submissions Miss Thornton drew my attention to paragraphs 52, 59, 60, 73 and 76 to 78 of the judgment. I do not intend to lengthen this judgment with lengthy quotations from Lang J's judgment. In my view the Inspector's summary in paragraphs 37 to 44 accurately summarise Lang J's views. It is also to be noted that in paragraph 77 Lang J expressly rejected the suggestion that it was outside the competence of a civil engineer to take into account environmental considerations when making recommendations.

Sections 16(2) and 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and the NPPF

48. I am satisfied that that the Inspector's analysis of the Barnwell Manor case accurately reflects the law relating to the importance of preserving heritage assets. It is not necessary to refer to it further.

Materiality

49. In her decision the Inspector was obliged to have regard to material considerations. Whether a factor is capable of being a material consideration is a matter of law. The approach to the issue of materiality was summarised by Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment [1990] 61 P&CR 343 at [352/3]:

The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb "might," I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.

If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.

If the judge concludes that the matter was "fundamental to the decision," or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.

The significance of the Rules

50. Miss Thornton referred me to the recent Court of Appeal decision in Hopkins v Sec of State (CA) [2014] JPL 1000. In particular she referred me to paragraphs 47, 61 and 62 of the judgment of Jackson LJ. In paragraph 47 he said.

47. I would formulate the principle of natural justice or procedural fairness, which is in play in this appeal, as follows. Any participant in adversarial proceedings is entitled (a) to know the case which he has to meet and (b) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case.

51. In paragraph 62 he made a number of points including:

(i) Any party to a planning inquiry is entitled (a) to know the case which he has to meet and (b) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case.

(ii) If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the Inspector's decision.

(iii) The 2000 Rules are designed to assist in achieving objective (i), avoiding pitfall (ii) and promoting efficiency. Nevertheless the Rules are not a complete code for achieving procedural fairness.

The Rules

Notification

52. The sending of notices is governed by rule 23:

Notices or documents required or authorised to be sent or supplied under these Rules may be sent or supplied—

(a) by post; or

(b) by using electronic communications to send or supply the notice or document (as the case may be) to a person at such address as may for the time being be specified by the person for that purpose.

53. Under rule 4(4) The Council were required to ensure that within 1 week of the starting date "any other person who made representations to the local planning authority about the application occasioning the appeal have been notified in writing that an appeal has been made and of the address to which and of the period within which they may make representations to the Secretary of State."
54. It is common ground that Mr Anderson was entitled to be notified in writing under rule 4(4). The Council contends that it sent him an email on 8^th August 2014. Mr Anderson asserts he did not receive it. Mr Harwood QC contends that the Council was not entitled to send the notice by email as he had not specified an email address.
55. However as Mr Anderson had sent his objection by email he was, in my view, impliedly specifying that the Council could notify him by email. In my view there was no breach of rule 4(4). Even if there was such a breach I do not think it rendered the result of the appeal procedurally unfair. Mr Anderson discovered about the date of the inquiry by 11^th December 2014. He had 6 weeks to prepare his submissions. He was allowed to give evidence. He was allowed to cross examine Dr Hughes.

The refusal to permit the giving of evidence.

56. Under rule 11(1) Mr Anderson had no absolute right to appear at the inquiry. However under rule 11(2) the Inspector had a discretion (not to be unreasonably withheld) to allow him to appear. In those circumstances his right to give evidence is governed by rule 16(5), (6) and (9).
57. The basic rule is that the calling of evidence and cross examination was at the discretion of the Inspector. (rule 16(5)). However under rule 16(6) the Inspector can refuse to permit the giving or production of evidence which he considers irrelevant or repetitious. If the refusal relates to oral evidence that person has the right to submit the evidence in writing before the close of the inquiry. There is a similar (but not identical) provision under rule 16(9) if the person is behaving in a disruptive manner.
58. Mr Harwood QC argues that there was a breach of these rules by the Inspector by refusing to allow Mr Anderson to adduce the Appendix. He also contends that there was a legitimate expectation that Mr Anderson would be able to adduce the Appendix either by the guidance given by the Inspector at the pre inquiry meeting or by the official who spoke to Mr Anderson.

The date for the accompanied site view.

59. This is governed by rule 17. Under rule 17(1) the Inspector may make an unaccompanied inspection before or during the inquiry without giving notice of his intention to the persons entitled to appear.
60. Under rule 17(2)(a) the Inspector may inspect the land in the company of the appellant, the LPA and any statutory party during the inquiry or after its close. Under rule 17(2)(b) the Inspector must make such an inspection if so requested by the appellant or the LPA before or during the enquiry.
61. Under rule 17(3) the inspector must announce the date and time of a rule 17(2) inspection during the inquiry.
62. Despite the valiant submissions of Mr Barrett it seems to me quite plain that an accompanied inspection must be made in accordance with rules 17(2)(b) and 17(3). There is no room for an accompanied inspection outside the rules.
63. It follows that the inspection on 4^th November 2014 was in breach of the rules. It is, however difficult to see that the date of this inspection which was consented to by the appellant and the LPA affected the fairness of the inquiry or then decision. Mr Anderson had no right to attend the inspection and there is no reason to believe that his attendance would have made any difference.

5. Discussion

The Appendix

Did the Inspector close her mind?

64. At the heart of Mr Anderson's case is Mr Harwood QC's submission that the Inspector closed her mind to new options. That submission is based on the remark she made when requiring the Appendix to be removed.
65. I do not accept Mr Harwood QC's submission. There are a number of reasons for this. First, there is nothing in the decision to suggest that the Inspector had closed her mind to new options. To my mind a fair reading of paragraphs 42 to 44 of the decision letter makes it clear that she had not. The final sentence of paragraph 44 when read with footnote 7 makes it clear that she was prepared to consider other schemes.
66. Second, whilst the Inspector required the removal of the Appendix she permitted Mr Anderson to give in accordance with Section C of his proof. As already noted Section C contains a summary of the main elements of the scheme and was sufficiently detailed to enable Dr Hughes to understand the nature of Mr Anderson's scheme and to reject it.
67. Third, the Inspector permitted Mr Anderson to cross-examine Dr Hughes for 40 minutes and permitted him to cross examine Dr Hughes about his scheme. Under rule 16(5) the Inspector had a discretion in relation to the extent to which she permitted Mr Anderson to cross-examine Dr Hughes. She permitted a full cross-examination.

Did the Inspector fail to have regard to material considerations?

68. In my view there is no real possibility that the Inspector would have reached a different conclusion if she had taken the Appendix into account. There are a number of reasons for this. First she did permit the evidence in Section C of the proof. This presented the essential features of the option. Dr Hughes understood the option and repeatedly rejected it. As pointed out by Lang J in the Hampstead case this is an area where Parliament has expressly relied on the panel engineer in relation to safety matters. Thus the rejection by Dr Hughes as the panel engineer is fatal to Mr Anderson's scheme.
69. Second, Mr Anderson refused to be cross-examined about the details of the scheme and expressly withdrew it in cross-examination. I am conscious that in paragraph 5(b) of his second witness statement Mr Anderson states that that he could not have said he was withdrawing the option because he was not allowed to put it in the first place. However for reasons I have given he was allowed to put Section C of the proof. Furthermore Mr Manley QC's contemporaneous note is entirely consistent with his evidence. In all the circumstances I am satisfied on balance of probabilities that Mr Manley's evidence is reliable and Mr Anderson did say he was withdrawing his scheme.
70. Third, Mr Anderson's scheme was embryonic and required considerable further work. Although Mr Anderson offered his services free to Yorkshire Water there is no evidence that Yorkshire Water were willing to work with him.
71. In the course of her submissions Miss Thornton accepted that a new option was capable of being a material consideration. However I agree with Miss Thornton and Mr Barrett these factors mean there was no realistic possibility that the embryonic option which was rejected by Dr Hughes and withdrawn by Mr Anderson would provide any evidence as to whether the proposal by Yorkshire Water was necessary.
72. It follows that the Appendix was not a material consideration.

Did Mr Anderson have a legitimate expectation that he could adduce the Appendix as evidence?

73. I am prepared to assume (without deciding) that Mr Anderson had a legitimate expectation that he would be able to attend the inquiry, give evidence and present a proof of evidence. He was permitted to do all of that.
74. I do not however accept that that expectation gave him an expectation that the Inspector could not control the evidence in accordance with the rules. In my view she had a general discretion in relation to the evidence to be given by Mr Anderson. As Hopkins makes clear the principle of procedural fairness requires a party to know the case he has to meet. Thus Yorkshire Water was entitled to know the case it had to meet in relation to any new schemes and have a reasonable opportunity of dealing with it. It was for that reason that the Inspector did not want the ambush of Mr Anderson's scheme on the second morning of the hearing. [See paragraph 14 of her witness statement].
75. In my view it was well within her discretion to exclude the Appendix under rule 16(5)
76. In practice, however the summary of the scheme was admitted and was dealt with by Dr Hughes in cross examination.

Was the exclusion of the Appendix procedurally unfair?

77. I agree with Miss Thornton and Mr Barrett that the Inspector gave Mr Anderson a reasonable opportunity to present his case and the exclusion of the Appendix was not procedurally unfair. My reasons are largely those already expressed and I shall not repeat them.

Breaches of the Rules

78. I accept that there was a breach of rule 17 in that the accompanied inspection, for understandable reasons, took place before the start of the inquiry. However I do not accept in the circumstances of this case that any prejudice was caused to Mr Anderson or that the subsequent inquiry was procedurally unfair.
79. In my view the sending of the email by the Council on 8^th August 2014 was sufficient compliance with rule 4(4) in the circumstances of this case where he had himself made his objection to the planning permission by email. I am equally not satisfied that even if I am wrong that any procedural unfairness ensued to Mr Anderson. He discovered about the appeal on 11^th December 2014. 6 weeks is more than enough time for him to have prepared a proof. He could also have served it far earlier than the second morning of the hearing.
80. For reasons I have given I do not accept that there was any breach of rule 16 in relation to the control of the evidence to be given by Mr Anderson.

Mr Anderson's status as an expert

81. Mr Harwood QC complains that that the Inspector downgraded Mr Anderson's status as an expert. He was not allowed to read out his qualifications and they do not appear in the decision letter.
82. I do not accept that submission. The Inspector did not require Mr Anderson to expunge his qualifications from his proof. She made a perfectly reasonable request that they could be taken as read. Thus his qualifications were within the evidence he presented.
83. Second Mr Anderson did not give evidence as an expert. He gave evidence as a local resident who happened to be a retired civil engineer with past experience of working on water resource projects in this country. He did not profess any specific expertise in relation to dams and reservoirs and is not one of the 38 ARPEs appointed by the Secretary of State under the Reservoirs Act 1975. Dr Hughes, on the other hand, who was called as an expert by Yorkshire Water, is an ARPE, is a well respected expert in this field.
84. Third Mr Anderson was permitted to give evidence of the summary of his option in Section C of his proof. Furthermore, he was permitted to cross examine Dr Hughes. No doubt this was in recognition of his expertise/experience in Water Management.

6. Conclusion

85. When I stand back and look at the decision letter it is plain that the Inspector has looked carefully at the issues. She has correctly summarised the legal position both in relation to her role, the damage to heritage assets and the requirements of the Reservoirs Act 1975. She had to balance the need to virtually eliminate the risk of failure of the dam against the damage to the heritage asset. As a matter of planning judgment she concluded that none of the other schemes were demonstrated as being as safe and would not comply with the Reservoirs Act. In my view that was a conclusion she was entitled (indeed it might be suggested bound) to reach on the evidence.
86. For reasons I have given I am not satisfied that the procedure adopted by the Inspector was unfair to Mr Anderson. I am satisfied that he had a reasonable opportunity to present his case and that he did. The removal of the Appendix from his proof does not affect this.
87. In so far as there were breaches of the rules they did not render the inquiry procedurally unfair.
88. Accordingly I dismiss these appeals and refuse to quash the decision of the Inspector.