Law Report: 30 January 1998: Inspector has inquisitorial burden at hearing
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.
- 1 Nigel Farage: Me vs Russell Brand on Question Time – he's got the chest hair but where are his ideas?
- 2 Harry Potter fans can apply to the Hogwarts-inspired College of Wizardry
- 3 Jessica Chambers: 19-year-old woman 'doused with lighter fluid and burned alive' in the US
- 4 Russell Brand calls Nigel Farage 'poundshop Enoch Powell' in BBC Question Time debate
- 5 Orange Wednesdays are no more
Weather bomb in pictures: Storms cuts power for tens of thousands – and snow is on the way
Jessica Chambers: 19-year-old woman 'doused with lighter fluid and burned alive' in the US
Russell Brand calls Nigel Farage 'poundshop Enoch Powell' in BBC Question Time debate
Russell Brand was rendered speechless on Question Time by this man
Fury at Airbus after it hints the super-jumbo may be mothballed
Disgruntled RBS worker writes hilarious open letter to Russell Brand after anti-capitalist publicity stunt leaves him hungry
Nigel Farage defends Kerry Smith 'ch***y' comment: 'If you are going for a Chinese, what do you say you’re going for?'
Nigel Farage's approval rating hits 'record low' as popularity suffers in wake of Ukip sex scandal
Pakistan school attack live: Taliban kill at least 132 children in 'horrifying' massacre
Sony hack: Angelina Jolie branded 'seriously out of her mind' in further embarrassing leaked email saga
Panic Saturday: 13 million Britons spend £1.2bn – while 13 million others across the country live in poverty unable to afford food
£7 - £9 per hour: Recruitment Genius: Are you outgoing? Do you want to work in...
£30000 - £35000 per annum: Recruitment Genius: An opportunity has arisen for a...
£30000 - £35000 per annum: Recruitment Genius: An exciting opportunity to join...
£30000 - £35000 per annum: Recruitment Genius: We have an excellent role for a...