Law Report: 30 January 1998: Inspector has inquisitorial burden at hearing

The absence of an accusatorial procedure when an appeal against the refusal of planning permission is conducted by way of an informal hearing, rather than by a public local inquiry, places an inquisitorial burden upon the Inspector hearing the appeal.

Dyason v Secretary of State for the Environment and another; Court of Appeal (Lord Justice Nourse, Lord Justice Pill and Lord Justice Thorpe) 28 January 1998

The Court of Appeal allowed the appellant's appeal against the dismissal by the High Court of his application to quash the decision of an Inspector appointed by the Secretary of State for the Environment, given by letter dated 19 February 1997.

Having conducted a hearing on 5 February 1997, the Inspector dismissed the appellant's appeal against the decision of the second respondent, Chiltern District Council, to refuse planning permission for the carrying out of alterations to existing buildings to provide a single-storey agricultural building for ostrich breeding, rearing and general storage on land at Chesham.

The appellant appeared in person; Tim Mould (Treasury Solicitor) for the Secretary of State; Anne Williams (Solicitor to Chiltern District Council, Amersham) for the Council.

Lord Justice Pill said that the issues identified by the Inspector were "whether the development would be unacceptably harmful to the character and appearance of the area and, if so, whether there was sufficient agricultural justification which outweighed that objection".

It was submitted by the appellant, inter alia, that he had not been given a fair hearing by the Inspector. The proceeding on 5 February 1997 had been what was described in Department of the Environment Circular No 15/96 as a "hearing" as distinct from a public local inquiry.

Section 78 of the Town and Country Planning Act 1990 conferred a right of appeal against the refusal of an application for planning permission. Section 79(2) provided that, before determining an appeal under section 78, if either of the parties so wished the Secretary of State should give them an opportunity of appearing before and being heard by a person appointed by him for that purpose. That was the statutory right of appeal referred to in the Circular.

Paragraph 1 of the Circular stated that the appeal process was designed to be as user-friendly as possible, involving the best possible use of resources, whilst upholding the principles of fairness, thoroughness and consistency. It was for the planning inspectorate to decide whether the appeal would be conducted by way of a public local inquiry or by a hearing.

It was clear that at a hearing there was to be no formal cross-examination, and that a hearing was the suitable procedure where there was "no likelihood that formal cross- examination would be needed to test the opposing cases".

Planning permission having been refused, conflicting propositions and evidence would often be placed before an Inspector on appeal. Whatever procedure was followed, the strength of a case could only be determined upon an understanding of that case and by testing it with reference to propositions in the opposing case. At a public local enquiry the Inspector, in performing that task, usually had the benefit of cross-examination. If cross-examination disappeared, the need to examine propositions in that way did not disappear with it.

There was a danger in the procedure now being followed by the Secretary of State that the need for such consideration was forgotten. The danger was that the more relaxed atmosphere could lead, not to a full and fair hearing, but to a less than thorough examination of the issues. The absence of an accusatorial procedure placed an inquisitorial burden upon an Inspector.

The danger that the required fair hearing had not occurred in the present case was such that the decision must be quashed. A consideration of the decision letter did not lead to confidence that there had been sufficient inquiry into the claimed agricultural justification. Whilst long decision letters were not to be encouraged, the court hearing an appeal against the decision would need to inquire whether there had been a sufficient consideration of the merits of the case and any challenge to it.