North Norfolk District Council v Secretary of State for Housing Communities And Local Government, Court of Appeal - Administrative Court, August 03, 2018, [2018] EWHC 2076 (Admin)

Resolution Date:August 03, 2018
Issuing Organization:Administrative Court
Actores:North Norfolk District Council v Secretary of State for Housing Communities And Local Government
 
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Neutral Citation Number: [2018] EWHC 2076 (Admin)

Case No: CO/1319/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 03/08/2018

Before :

MR JUSTICE OUSELEY

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Between :

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MS ESTELLE DEHON

(instructed by EASTLAW) for the Claimant

MR LEON GLENISTER

(instructed by THE GOVERNMENT LEGAL DEPARTMENT) for the Defendant

The Interested Parties were not present or represented

Hearing dates: 25 July 2018

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MR JUSTICE OUSELEY :

  1. On 2 March 2017, following a six day Public Inquiry into conjoined appeals, an Inspector granted planning permission for the erection of two single wind turbines on two sites, separated by a mile or so, in the area of North Norfolk District Council. His two decisions were challenged by the Council under s288 of the Town and Country Planning Act 1990. The Secretary of State conceded that the challenge should succeed on two of the four grounds raised; the decisions were quashed by consent on 24 May 2017. The other grounds were neither argued nor conceded. The Secretary of State acting through his delegate, the Planning Inspectorate, PINS, decided initially that the appeals should be re-determined at a further Public Inquiry before a different Inspector. The new Inspector examined the file, whatever that might have been, and considered that the issues could be dealt with by written representations. PINS gave the parties the opportunity to comment on this suggestion. The two planning appellants agreed. The Council and the main group of local objectors, NOTTT, did not and contended that the appeals should be re-determined by way of Public Inquiry. PINS decided against a Public Inquiry in an email of 8 January 2018. Following a threatened judicial review, PINS wrote a more detailed letter of 14 February 2018, explaining its decision and answering criticisms made of its earlier email. The two contain the decision under challenge.

  2. The essence of this challenge is that PINS did not interpret or apply properly the published criteria for the mode whereby quashed planning appeals are to be re-determined, though a variety of points were raised around that general theme. It is not a rationality challenge.

  3. I note that this challenge is brought by way of judicial review. A question was raised on the paper decision as to whether the correct route was a statutory challenge under s288. It makes no real difference at this stage, in view of the shortened time limits for judicial review in planning cases, and the permission stage in statutory appeals. But without further elaboration, it seemed to me that these proceedings were properly judicial review proceedings and not caught by s284(3)(b) as a ``decision on an appeal under s78,'' the only ouster category which could potentially apply.

    The legal framework for re-determination

  4. S319A provides generally for determination by the Secretary of State as to which procedure for determining an appeal shall be followed. It applies to appeals generally, including those which fall to be re-determined after the quashing of a decision on an appeal. It states:

    ``(1) The Secretary of State must make a determination as to the procedure by which proceedings to which this section applies are to be considered.

    (2) A determination under subsection (1) must provide for the proceedings to be considered in whichever of the following ways appears to the Secretary of State to be most appropriate -

    (a) at a local inquiry;

    (b) at a hearing;

    (c) on the basis of representations in writing.

    ...

    (4) A determination under subsection (1) may be varied by a subsequent determination under that subsection at any time before the proceedings are determined.

    ...

    (6) The Secretary of State must publish the criteria that are to be applied in making determinations under subsection (1).''

  5. The Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 SI No.1625 provide for the procedure following the quashing of a decision as follows:

    ``20 (1) Where a decision of an inspector on appeal in respect of which an inquiry has been held is quashed in proceedings before any court, the Secretary State -

    (a) shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of matters with respect to which further representations are invited for the purposes of his further consideration of the appeal; and

    (b) shall afford to those persons the opportunity of making written representations to him in respect of those matters or of asking for the re-opening of the inquiry; and

    (c) may, as he thinks fit, cause the inquiry to be re-opened (whether by the same or a different inspector), and if he does so paragraphs (2) to (7) of rule 10 shall apply as if the references to an inquiry were references to a re-opened inquiry.''

  6. The criteria required by s319A(6) are set out in the Procedural Guide to planning appeals in England published by PINS in August 2016. They were, so far as material, the same when the decisions were first made as to how the appeals were to be determined. The two relevant Annexes are K, which deals with appeals in general, and L which deals with challenges to appeal decisions. I set out the material parts of each, emboldening as in the original.

    ``K Criteria for determining the procedure for planning, enforcement, advertisement and discontinuance notice appeals

    The criteria for each procedure cannot be fully prescriptive or entirely determinative: they require judgement to be applied using common sense. More than one criterion may apply.

    Written representations - written representations would be appropriate if:

    · the planning issues raised or, in an enforcement appeal, the grounds of appeal, can be clearly understood from the appeal documents and a site inspection (if required); or

    · the issues are not complex and the Inspector is not likely to need to test the evidence by questioning or to clarify any other matters; or

    ...

    Hearing - a hearing would be appropriate if: ...

    · the case has generated a level of local interest such as to warrant a hearing

    ...

    Inquiry - an inquiry would be appropriate if:

    · there is a clearly explained need for the evidence to be tested through formal questioning by an advocate; or

    · the issues are complex; or

    · the appeal has generated substantial local interest to warrant an inquiry as opposed to dealing with the case by a hearing; or...''

    The footnotes to ``complex'' and ``substantial local interest'' read respectively:

    ``For example where large amounts of technical data are likely to be provided in evidence.''

    ``Where the proposal has generated significant local interest a hearing or inquiry may need to be considered. In such circumstances the local planning authority should indicate which procedure it considers would be most appropriate taking account of the number of people likely to attend and participate at the event. We will take that advice into account in reaching the decision as to the appropriate procedure.''

    L.12 expressly deals with ``What happens if a challenge is successful.''

    ``L.12.2 The appeal will usually be decided by either further written representations or an inquiry. We will rarely arrange a hearing even if the original appeal was dealt with this way. We consider that a hearing decision that has been examined in the formal setting of the High Court would normally need to be re-determined under the formal inquiry procedure, in order to allow a full examination of the legal issues raised. However, where all parties agree that a hearing would be appropriate we will take this into account when determining the procedure for the re-determined appeal.

    L.12.3 Where the appeal was originally dealt with by written representations, we would normally re-determine it by means of further written representations. However, where there has been a material change in circumstances, we may consider this is no longer the most appropriate procedure; having regard to the criteria (please see Annexe K).

    L.12.4 Where the appeal was originally dealt with by an inquiry, it will probably be re-opened. Where there have been significant changes in circumstances (eg new legislation or local or national policies) since the original inquiry or hearing the Inspector would normally allow further evidence to address these.''

    The facts

  7. In 2016, a Public Inquiry had been arranged for the appeal in relation to the single turbine at Pond Farm, Bodham. The appellant in the Selbrigg Farm appeal sought a hearing rather than a Public Inquiry, ``given lack of complexity to warrant an Inquiry'' among other matters. PINS decided, however, that a Public Inquiry was also appropriate for that appeal. PINS, in its email of 25 February 2016, was ``mindful of the significant raft of evidence which has been submitted in support of the appeal (which seems to contradict Eversheds' assertion of the lack of complexity)'' which told against a hearing. There was also ``substantial local interest'', in the form of 700 representations at the application stage. PINS was ``therefore firmly of the view that, in line with the criteria at Annexe K..., an Inquiry is the most appropriate procedure.'' The appeals were then conjoined, given that the schemes were similar, both ``heavily opposed by local residents'', both refused for very similar reasons and were about a mile or so apart. I note that the Inquiry was justified separately for each turbine alone.

  8. The Inquiry proceeded; the decisions were quashed by consent, on the Council's application, on two of the grounds raised but without judicial decision on the others. There would be no value to the claimant in contesting the case further even if the other grounds were strong, or even stronger than those on which...

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