Taking objections seriously

Unlike in the Republic of Ireland, there are no third-party rights of appeal in the UK against the grant of planning permission. If planning permission is granted by the local planning authority, objectors may only seek judicial review.

However, if an application for planning permission is refused and the developer appeals, or if the application is 'called in' for determination by the Secretary of State, third parties have a right to be represented at the hearing or public inquiry. If they are very keen to get more involved, third parties can apply to become 'rule 6 parties' under rule 6(6) of the relevant Inquiry Procedure Rules.

Rule 6 status is a position almost equivalent to being a main party: members of the public will be sent copies of documents and are entitled to appear at an inquiry and cross-examine. Even so, it is relatively rare for an inspector to reject an appeal on grounds which have been raised only by the third party.

But it does happen, and the recent High Court judgment in Ecotricity (next Generation) v Secretary of State for Communities and Local Government [2015] EWHC 801 (Admin) reminds developers of the danger of ignoring planning objections, even those from seemingly unthreatening third parties.

Aviation safety

Gloucestershire renewables firm Ecotricity sought planning permission for a two-turbine scheme in Norfolk. The public inquiry took place over six days in late 2013. One objector was the Shipdham Flying Club, but it was not a rule 6 party and did not even attend the inquiry.

On two instances before the inquiry took place, the club had written, first to the council, then to the Planning Inspectorate, to object to Ecotricity's proposal. It argued that the turbines would cause a danger to low-flying aircraft at a 'choke point' location. The club then took no further part in the proceedings.

Ecotricity responded to the first letter, but ignored the second. The aviation issue then received no further mention. At the outset of the inquiry, in keeping with the standard practice, the inspector identified what he considered to be the main issues. The objection raised by the club was not one of them.

'Unfair and irrational'

When Ecotricity found out that its appeal had been dismissed because of reasons that included concerns about flight safety, it challenged the decision in the High Court. It argued it was unfair to accept the club's arguments, which had not been presented at the inquiry, were not shared by the national aviation authorities, and had not been identified as a main issue by the inspector.

Ecotricity called the decision to reject its planning appeal on the basis of aviation safety 'manifestly unfair and irrational', with the inspector having accepted at the inquiry that the agreed position between the company and Norwich International Airport was that an aviation safeguarding condition should be imposed.

However, the court dismissed the appeal. The deputy High Court judge, Charles George QC, said that while Ecotricity might have been surprised to learn of the inspector’s concerns over aviation safety, it had been aware of an objection from the club. The judge added that it should have been obvious that the inspector would have to deal with the club’s objection, and Ecotricity should have been aware of the need to address it.

The judge also held that the inspector was not bound to raise the issue or seek additional evidence on it, and had to make a decision based on the evidence before him. On this issue, the only evidence was from the flying club. As a result, there nothing irrational about the decision.

The judge was of the view that Ecotricity should have called expert evidence or produced a written report in response. In coming to his decision, the judge relied on the Court of Appeal’s decision in Secretary of State for Communities and Local Government v Hopkins Development Ltd [2014] EWCA Civ 470, which held it was not a breach of the rules of natural justice for a planning inspector to base their decision on issues which emerged in evidence during the course of a planning inquiry and which they had not previously identified as main issues.

Ecotricity was granted permission to appeal by Lord Justice Sullivan but decided not to pursue it. While the grant of permission suggests that there might be some doubt as to the correctness of the decision, the failure to pursue the appeal means that the decision remains good law (although, as a High Court judgment, not binding upon other High Court judges). The decision stands as a warning to developers to ensure that all written objections should be fully dealt with. SJ

Gregory Jones QC is a barrister practising from Francis Taylor Building

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