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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Vicente & Anor v Secretary of State for Communities and Local Government & Anor [2014] EWCA Civ 1555 (05 December 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1555.html Cite as: [2014] EWCA Civ 1555, [2015] PTSR D9, [2014] WLR(D) 523

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE COLLINS
[2013]EWHC 2713 (ADMIN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th December 2014

LORD JUSTICE BURNETT:

Introduction

1. The issue in this appeal is whether the a planning Inspector's decision dated 12 July 2012 to allow an appeal and grant planning permission for residential development on a site at Great Dunmow, Essex was vitiated by procedural unfairness. The matter came before Collins J as an application pursuant to section 288 of the Town and Country Planning Act 1990 ["the 1990 Act"] on 1 July 2013. In an ex tempore judgment he allowed the appeal and quashed the Inspector's decision with the result that the underlying appeal would be reheard. The judge expressed his decision as being a finely balanced one. Both the Secretary of State for Communities and Local Government and Taylor Wimpey UK Limited appeal against the order of Collins J.
2. Taylor Wimpey applied for planning permission for 100 houses on land to the south of Ongar Road, Great Dunmow. Uttlesford District Council refused permission. The farmland site lay outside the development limit under Local Plan Policy S7, which protects the countryside. The Council considered that the level of development proposed would be harmful to the character of the area. The Council also concluded that the proposal would compromise road safety. Additionally, it was concerned about a shortfall in primary school places and that the proposal made inadequate provision for "affordable housing", albeit that such concerns could be, and in due course were, dealt with by undertakings under section 106 of the 1990 Act. In refusing the application for planning permission the Council rejected the advice of its officials, as it was fully entitled to do.
3. Taylor Wimpey appealed against that refusal pursuant to section 78 of the 1990 Act. There are three ways in which an appeal may be determined by an inspector in such cases. First, at an inquiry. That is a relatively formal adversarial process with parties, often legally represented, statements of case, the calling of witnesses, cross-examination, formal speeches etc. Secondly, the appeal may be dealt with at a hearing. That is informal, albeit that the relevant council and applicant for planning permission are styled "parties" with others for the most part being involved at the discretion of the Inspector. The procedure is inquisitorial and discussion-led by the Inspector as well as being based on the underlying documents produced during the planning process. Thirdly, the appeal can be dealt with entirely on paper.
4. In this case the Inspector decided to proceed by way of hearing. The appellants before the judge were local residents who had objected in writing to the planning application ["the Objectors"].
5. The Town and Country Planning (Hearings Procedure)(England) Rules 2000 ["the Rules"] governed the appeal before the Inspector. A different set of rules governs planning inquiries. Once the Inspector had decided to proceed at a hearing, the Secretary of State was obliged to send a notice to that effect to the Council and to Taylor Wimpey (Rule 3A). The date on which that notice was sent was the "starting date" for the purposes of the Rules. Rule 4(2)(b) provides:

"The local planning authority shall ensure that within 2 weeks of the starting date –

(b) any –

(i) statutory party; and

(ii) other person who made representations to the local planning authority about the application occasioning the appeal,

has 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."

Rule 6 then provides that the appellant, the local authority and others involved must provide anything they rely upon in writing according to a timetable.

6. Rule 7 requires the Secretary of State to fix the hearing within 12 weeks of the starting date, unless it is impracticable to do so. He must give at least four weeks' notice to those entitled to appear. Those entitled to appear are the appellant, the planning authority and statutory parties (Rule 9(1)). The Objectors were not statutory parties, but by Rule 9(2) the Inspector may permit any other person to appear at a hearing. That permission may not be unreasonably withheld. Rule 7(5) provides;

"The Secretary of State may in writing require the local planning authority to take one or both of the following steps –

(a) not less than 2 weeks before the date fixed for the holding of a hearing, to publish a notice of the hearing in one or more newspapers circulating in the locality in which the land is situated;

(b) to send a notice of the hearing to such persons or classes of persons as he may specify, within such period as he may specify."

7. The procedure at a hearing is governed by Rule 11:

"(1) Except as otherwise provided in these Rules, the inspector shall determine the procedure at a hearing.

(2) A hearing shall take the form of a discussion led by the inspector and cross-examination shall not be permitted unless the inspector considers that cross-examination is required to ensure a thorough examination of the main issues.

(3) Where the inspector considers that cross-examination is required under paragraph (2) he shall consider, after consulting the appellant and the local planning authority, whether the hearing should be closed and an inquiry held instead.

(4) At the start of the hearing the inspector shall identify what are, in his opinion, the main issues to be considered at the hearing and any matters on which he requires further explanation from any person entitled or permitted to appear.

(5) Nothing in paragraph (4) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph.

(6) A person entitled to appear at a hearing shall be entitled to call evidence but, subject to the foregoing and paragraphs (7) and (8), the calling of evidence shall otherwise be at the inspector's discretion.

The inspector may refuse to permit the-

(a) giving or production of evidence; or

(b) presentation of any other matter,

which he considers to be irrelevant or repetitious; but where he refuses to permit the giving of oral evidence, the person wishing to give the evidence may submit to him any evidence or other matter in writing before the close of the hearing.

(8) The inspector may-

(a) require any person appearing or present at a hearing who, in his opinion, is behaving in a disruptive manner to leave; and

(b) refuse to permit that person to return; or

(c) permit him to return only on such conditions as he may specify,

but any such person may submit to him any evidence or other matter in writing before the close of the hearing.

(9) The inspector may allow any person to alter or add to a hearing statement received under rule 6 so far as may be necessary for the purposes of the hearing; but he shall (if necessary by adjourning the hearing) give every other person entitled to appear who is appearing at the hearing an adequate opportunity of considering any fresh matter or document.

(10) The inspector may proceed with a hearing in the absence of any person entitled to appear at it.

(11) The inspector may take into account any written representation or evidence or any other document received by him from any person before a hearing opens or during the hearing provided the he discloses it at the hearing.

(12) The inspector may from time to time adjourn a hearing …"

The Outline Facts

8. The hearing was fixed for 11 April 2012 at 10.00 at the council offices. Councillors Mackman and Ranger attended with their planning officer, Clive Theobald. Taylor Wimpey was represented by a team led by David Lander . It included Jenna Smith who kept a detailed note of what occurred. The hearing lasted the day and was followed by a site visit the following morning. Nobody else attended the hearing. That is not uncommon because objectors are often content to rely upon their written objections. The Inspector has all the underlying planning materials. Nonetheless, the Inspector asked to see the public notification of the hearing and was handed a copy of a letter sent by the Council to local residents. It has been common ground that the Council assumed responsibility for notifying the hearing date to those who had objected to the development, I infer pursuant to a direction from the Secretary of State pursuant to Rule 7(5). The Inspector later noticed that the copy he had been given did not specify the time and date of the hearing. He took that up with Mr Theobald at the site visit but was reassured that the letters sent did provide the necessary details. He asked that the matter be checked. After the site visit the Inspector was told that notification had not been sent to objectors. It was in those circumstances that the Inspector decided to hold a second hearing on proper notification. That took place on 7 June 2012. The hearing itself occupied the day until 15.45 and the site visit followed at about 16.30. Jenna Smith again took detailed notes of what occurred.
9. There was correspondence between Taylor Wimpey and the Planning Inspectorate in advance of the second hearing to determine its scope. In particular Taylor Wimpey wished to know whether the evidence presented at the April hearing would remain as evidence. Following consultation with the Inspector, on 18 May 2012 Ann Edmonds of the Planning Inspectorate wrote:

"As you know, the notification set out in the Hearing Procedure Rules was not carried out, and as a result third parties were deprived of the opportunity to attend the event. It is normal for Inspectors to allow local residents to participate in the discussion about development which may affect them, and it would not be in the interests of openness, fairness, and impartiality if the appeal decision in this case was based on proceedings which took place without the public being present. Therefore, in principle, it will be necessary to re-run the Hearing in the same form as the event which took place on 11 and 12 April, and the same agenda will apply. However, the procedure to be adopted will be dependent on the nature and extent of public attendance, and the Inspector will discuss the details with all those present at the start of the resumed event. In common with normal procedure, the main parties should rely on the case provided in their statements, and the Inspector will not expect new material to be put forward. The concern about the opportunity being taken to improve the presentation of the case is noted, but, of course, this applies to both main parties."

There had been an earlier letter from the Planning Inspectorate which had said that the intention was "to enable any interested parties to be able to listen to all the evidence and to be given the opportunity to comment at the hearing". The second letter makes clear that the Inspector's intention was to start again at the new hearing. One of the consequences of that approach was that Taylor Wimpey sought, and was later granted, its costs of the second hearing against the Council.

10. I shall return to the detail of what occurred at the hearings but note at this stage that the Inspector did indeed start again with the same agenda (in all material respects). Following the hearing the Inspector circulated his decision on 20 June 2012 and then reissued it in its final corrected form on 12 July 2012.

The Developing Challenge

11. The first hint of unhappiness came in a letter dated 14 July 2012 to the Council complaining that Taylor Wimpey had access to the Inspector over three days, whilst the residents were limited to one. Its writer, William Lloyd, thought this wrong and asked that the Council demand a "fresh appeal". The ground as originally formulated in the application to the High Court was:

"The Planning Inspector misled himself on the definition he applied to sustainability and was wrong to identify a sufficient benefit in housing to compensate for the harm of building in the countryside."

In short, the attack was on the substance of the decision rather than any procedural complaint. That ground was superseded so that by the time the application was heard by the judge it was:

"The [Secretary of State's] decision was unlawful by reason of procedural unfairness, namely the failure to ensure that all parties were notified of the hearing in accordance with [the Rules] and having discovered a complete absence of notification of concerned residents, his failure to restart the inquiry with a new Inspector."

12. Although this was not an "inquiry" and the Objectors were not "parties" to the hearing, the focus of the complaint was that the June hearing should have been before a different inspector. The judge rejected that contention and it has not been renewed before this court. There was no criticism of the decision itself before the judge. The argument before the judge developed to encompass criticism of the fairness of what had occurred at the second hearing, as compared with the first.
13. In her witness statement in support of the application Sandra San Vicente (the first claimant) made a series of points including that she found it difficult to hear what was being said at the June hearing in the council offices until she and others moved their chairs, was uncomfortable about raising issues covered in the letters of objection and had some difficulty in understanding the technical discussion. During a coffee break she discovered that the Councillors present (Mackman and Ranger) were strongly opposed to the development. Ms San Vicente suggested there was little discussion of housing supply issues. She felt that the residents were prejudiced by Mr Theobald's presence, because he had recommended granting planning permission. She was further concerned when the Inspector said that a decision was normally made within six weeks but he hoped to get it out within a fortnight. She thought this suggested that he had made his mind up. Ms San Vicente and others considered that the discussion was rushed, indeed perfunctory. A recurrent theme is the complaint that the second hearing was shorter than the first. Both Councillor Mackman and Councillor Ranger were also critical of the second hearing as being rigid and in their opinion, inadequate.

The Judgment Below

14. The judge accepted that the approach suggested in the letter from the Planning Inspectorate quoted above was correct. He indicated that evidence taken at the first hearing could remain as part of the evidence on which the Inspector acted only if the Objectors were apprised of it and had a proper opportunity to comment upon it. What happened gave the appearance of unfairness. The witness statements spoke of the unhappiness of those involved that they had not been present during the discussions at the first hearing. However, the judge concluded that the applicants before him had to establish "actual unfairness" and that what happened resulted in prejudice to them. It was necessary

"to see what damage was done to the objectors' cases and whether there were any matters which were dealt with at the first hearing but were not adequately dealt with at the second." (para 19)

The judge went on to record that the two councillors were making many of the points of concern to the Objectors.

15. Miss Graham Paul, who appeared for the Objectors before the judge as she has before us, was asked by the judge to identify factors which were not dealt with in the same way at the second hearing as at the first. She identified two. First, the question that the land was grade two agricultural land. That was a matter of concern raised in the original written objections. The point in issue was that if agricultural land was to be built on, the Council should look to low grade land rather than high grade land. Secondly, the impact of the National Planning Policy Framework ["NPPF"] which had been published in March 2012. That was very shortly before the appeal and, unsurprisingly, the Council had made little progress in working up new policies for development which took it into account. It was common ground that the Local Plan already in place made insufficient provision for housing. The Council had begun a consultation exercise on future development within the District involving residents but at both the hearings it was common ground between Taylor Wimpey and the Council, and accepted by the Inspector, that the evolving thinking was at too early a stage to carry any weight in the appeal. The Councillors had produced a plan at the first hearing, but not the second, which had dots on it representing where different groups of local residents thought housing development should be permitted. It was suggested that there was no discussion of the issue at the second hearing. The Inspector's conclusion on this point was:

"The role of local residents in shaping their environment is recognised in the Framework, and it is understood that a neighbourhood plan is in the course of preparation. However, neither this, nor the development plan documents setting out the allocation of land, have reached a stage where significant weight may be applied to their proposals. In the meantime there remains a need to provide a continuing supply of residential land."

The judge noted that there was no challenge to that conclusion. There needed to be real prejudice to the Objectors and a real possibility that, had the matter been dealt with differently, the outcome might have been different.

16. The judge concluded that there was an appearance of unfairness and actual unfairness in the way that the second hearing progressed. He recognised that the hearing was not a court or a formal inquiry, but attached some weight to the fact that had there been a formal inquiry the Objectors could have been parties, and also to the fact that they were "entitled to be heard". Strictly speaking, of course, they were not "entitled to be heard" because their participation in the hearing was at the discretion of the Inspector. However, it is accepted on all sides that in practical terms objectors of this nature would always be given an opportunity to be heard at the hearing in an appeal if they wished. The judge recognised that it would not be appropriate to quash the decision if the result following a new hearing would inevitably be the same. That was not so in this case. His overall conclusion was:

"33. It seems to me that this is a somewhat finely balanced decision, because I do recognise the force of Mr Kimblin's submissions that … the objectors at the second hearing were not precluded in any way from raising all matters that they wished to raise. Nevertheless there can be no doubt that the inspector (and he says so in his appeal decision) had regard to the hearing held not only on 11 April but also 7 June. … What weight he may have attached to evidence that was given before him on the previous occasion, which was not dealt with directly by the objectors nor given in their presence, is not possible to identify with any certainty. But the concern of the objectors is the obvious one that there may have been matters that he relied on which, had they been present, they might have been able to deal with in a different way from that which the councillors raised or from that which was dealt with below. I have already dealt with two matters that Miss Graham Paul specifically relies on which could have been considered in a somewhat different fashion."

The Grounds of Appeal

17. The Secretary of State appeals on the grounds (a) that the judge was wrong to equate the Objectors with formal parties in a planning inquiry; and (b) that there was no procedural unfairness or prejudice relating to the second hearing. Taylor Wimpey advanced a third ground namely (c) that in any event there was only one realistic outcome to the appeal before the Inspector: he was bound to allow it. In those circumstances even if there was procedural unfairness it was immaterial. In consequence the judge should not have allowed the application.
18. The first ground advanced by the Secretary of State arises from the concern that, at least on one reading, the judge may have reached his conclusion by equating the Objectors with formal parties at a planning inquiry, rather than attendees at an informal hearing. Mr Kimblin, for the Secretary of State, submits that the judge was wrong to suggest that the Objectors were "entitled to be heard" at the hearing, because their involvement was at the discretion of the Inspector and was wrong to think that, even at an inquiry, they would necessarily have been formal parties. In summarising the approach of the judge in paragraph 16 above I have noted the observations with which the Secretary of State takes issue. Whilst I accept that those observations were not strictly speaking correct, the essence of the judge's decision is distilled in paragraph 33 of the judgment. The real issue in this appeal is whether the judge was right to conclude that there had been a want of procedural fairness that prejudiced the Objectors.

Procedural Fairness at the Hearing

19. The features required to provide procedural fairness to participants in an administrative or quasi-judicial process are necessarily fact and context specific. Hopkins Developments Limited v. Secretary of State for Communities and Local Government [2014] EWCA Civ 470; [2014] PTSR 1145 was a case concerning procedural fairness at a planning inquiry. As I have noted, that is a formal process. The complaint made was that the Inspector, having set out in writing the main issues she considered arose in the appeal, as was required by the relevant rules, decided the case on the basis of evidence and arguments advanced by the planning authority and various objectors on a different issue (character, appearance and sustainability). The Court of Appeal decided there was no procedural unfairness. The court considered a number of the detailed rules governing the conduct of an appeal at an inquiry (which are not relevant to the decision in this case). Many of the authorities dealing with fairness at planning inquiries had referred to the underlying test of fairness being whether someone had "a fair crack of the whip", as Lord Russell of Killowen had put it in Fairmount Investments Ltd v. Secretary of State for the Environment [1976] 1 WLR 1255 at 1265-1266. Jackson LJ reformulated that colloquial expression. The test was whether there had been procedural unfairness which materially prejudiced the person concerned (para 49). A party at a planning inquiry must have a reasonable opportunity to adduce evidence and make submissions (para 62(2)). Beatson LJ noted that in the context of administrative decision making the procedures required to achieve fairness are "acutely sensitive to context and the particular factual situation" (para 85). "Fairness" in this respect was an aspect of the "right to be heard" which had been expanded beyond judicial proceedings and may be less onerous and less formal because of the nature of the decision being made (para 86). He continued:

"87 … it is important to identify what the "right to be heard" limb of the common law principle gives the individual affected. In R(Gul) v. Secretary of State for Justice [2014] EWHC 373 (Admin) at [34], I stated: "it is clear from the decisions in the last 60 years that what is required is an opportunity to be heard, and opportunity to participate in the procedure by which the decision is made." I gave as examples the classic statement by Denning LJ in Abbott v. Sullivan [1952] 1 KB 189, 198 and the recent statement by Lord Reed JSC in R (Osborn) v. Parole Board [2013] 3 WLR 1020, para 68. … [T]his is also the broad position at a planning inquiry."

20. The procedure at a planning hearing lacks much of the formality of a planning inquiry. It involves a discussion led by the Inspector centred on the document he has produced, even though that does not preclude other issues being raised and discussed. There is ordinarily no cross-examination and the calling of formal evidence is usually limited. These features flow from Rule 11 of the Rules (set out above), the effect of which generally is to emphasise the informal nature of the process.
21. A complaint concerning procedural fairness from persons in the position of the Objectors in an appeal under section 78 of the 1990 Act determined by way of hearing will be answered by asking whether they had a reasonable opportunity to raise their points in the course of the hearing and, if not, whether they suffered any material prejudice. A reasonable opportunity to raise their points entails knowing the main points relied upon by those whose plans they are objecting to.
22. It is common ground that the Objectors had no opportunity to raise their points at the April hearing. The underlying failure in this case to notify objectors of a hearing must be rare. I agree with the judge that the denial of that opportunity could be cured, even if the Inspector took account of what was said at the April hearing, if the Objectors were apprised of what had been said and been given a reasonable opportunity to comment upon it. However, the judge concluded that the Inspector had taken account of the evidence and argument he heard at the April hearing and that the Objectors had not been apprised of it, alternatively that they had not had a reasonable opportunity to deal with it if they were. Subject to that, he accepted that the Objectors had been able to make whatever points they wished at the second hearing.
23. In respectful disagreement with the judge, in my judgment, the evidence provided on behalf of the Secretary of State and Taylor Wimpey demonstrates that the Inspector treated the second hearing as a fresh hearing. Miss Graham Paul points to the Appeal Decision itself which states:

"Hearing held on 11 April and 7 June 2012"

She submits that establishes the proposition that the Inspector had regard to what had occurred at the first hearing in April. However, in my view, that represented no more than a formal recital of events in the heading of the document. It was not concerned with the substance of what had occurred. The true position was set out in paragraph 6 of the Appeal Decision, which itself reflected the approach which the Planning Inspectorate had earlier stated in correspondence:

"After the initial hearing the Council confirmed that local residents and other interested third parties had not been advised of the date and venue of the event. In view of the extent of public interest it was necessary to hold a second session in order to re-hear the evidence given by the main parties, and to provide an opportunity for public involvement in the discussion. Full account has been taken of the views expressed by local residents at the Hearing, as well as those contained in written representations."

24. The Inspector produced his agenda for the second hearing. It was in substance the same as the first (save for the costs application). In her second witness statement Jenna Smith confirms that the Inspector stated his intention to re-run the hearing in its entirety, in conformity with the indication given in the correspondence. The Inspector explains that he used the same notes that he had prepared to guide the discussion at the first hearing for the purposes of the second. In the same statement he says that he let the main parties present their cases as before and gave those who attended the hearing the opportunity to put their views at every stage.
25. The judge accepted that the Objectors were able to make whatever points they wished at the second hearing. It was only because he concluded that evidence from the first hearing had been relied upon by the Inspector of which the Objectors were not apprised, in particular on the two topics identified by Miss Graham Paul, that he took the view "on balance that this is a case in which the claimant should succeed" (para 35). If I am right that the Inspector did not in fact do so, the consequence would be that these appeals should be allowed.
26. We were taken in considerable detail to the notes relating to the two hearings made both by Jenna Smith and also the Inspector. Counsel explained that the exercise before this court was rather fuller than had occurred before the judge. Having reviewed those notes I am further of the view that there was no issue of which the Objectors were not apprised and upon which they had every opportunity to comment, even if, contrary to my conclusion the Inspector took account of the earlier evidence. In particular on the two issues identified by Miss Graham Paul (agricultural land and the NPPF/housing need) the treatment was more than adequate.
27. The agricultural land issue was not relied upon as a reason for refusal of planning permission by the Council, but had been raised by members of the public in their objections. Jenna Smith's notes suggest that it was raised by the Inspector and discussed briefly at the first hearing, albeit not mentioned by the Councillors as an argument for resisting the appeal. At the second hearing Councillor Ranger raised the issue and argued that the development on this land would be a breach of Policy S7. That was accepted by Taylor Wimpey who instead relied upon the presumption in favour of sustainable development found in NPPF together with the local shortfall in housing to support its case that this scheme should be permitted at this site. Members of the public commented that the land was a viable agricultural unit of the highest quality. They are recorded also as suggesting an alternative green field site elsewhere as suitable for the housing development.
28. The NPPF was raised as one of the material policies in play towards the beginning of the second hearing, as it had been at the first. Taylor Wimpey had produced a note on it in advance of the first hearing which was available at the second. Taylor Wimpey expressed the view that the developing local plan responding to NPPF was not yet at a stage where it could be given significant weight. That point was made in their written material and reiterated orally. Mr Theobald agreed. It is not suggested that they or the Inspector were wrong in that view. The notes do not show that any members of the public commented on that issue, nor did Councillors. At the second hearing the Councillors did not produce the plan with indicative dots representing the views of some residents about where development should be permitted. That was their choice and does not suggest that the second hearing was unfair. It is clear from the notes that the implications of the NPPF and the critical questions of housing shortage (which was disputed by the Objectors), alternative sites and whether the need for housing outweighed harm were the subject of substantial debate. The same ground was covered, albeit not in identical terms, as had happened at the first hearing. The Objectors had every opportunity to make observations on the two issues identified by Miss Graham Paul, as they did on all others.
29. Before leaving the way in which the second hearing was conducted, I touch on an issue about which the Objectors were particularly concerned. The second hearing was shorter than the first, although evidence served on behalf of the Objectors suggesting that it was completed in half a day was mistaken. I do not consider that this point carries the argument anywhere. The second hearing at the council offices concluded at 15.45 rather than taking all day (as had the first). That enabled the site visit to be accommodated on the same afternoon, rather than the following morning as had been contemplated. That was not surprising. As the evidence suggests, the main protagonists were able to state their cases more succinctly having done so once already. Furthermore, time was taken at the first hearing discussing unilateral undertakings offered by Taylor Wimpey which it was unnecessary to spend time on at the second hearing, because they had already been signed off by Taylor Wimpey.
30. I am unable to accept the detailed points of criticism which were advanced by the claimants below and repeated before us.

Conclusion

31. The judge was just persuaded that the decision of the Inspector allowing Taylor Wimpey's appeal against the refusal of planning permission should be quashed because of procedural irregularities. In my judgment he was wrong to do. If my lords agree, I would allow the appeal and set aside the order of the judge. In the circumstances it is unnecessary to deal with the third ground raised by Taylor Wimpey that irrespective of what was said by the Objectors the result of the appeal would have been the same. It is sufficient to record that in an environment where planning judgement is engaged and where an inspector reached a different decision from the Council such an argument is a difficult one and I agree with the judge's conclusion on it.

Lord Justice Lewison:

32. I agree. The Objectors had the right to be treated fairly. In the context of an informal hearing (as opposed to a formal inquiry) I consider that they were entitled (a) to be notified of the hearing and its time and place (b) to know the main points in support of the application that they opposed and (c) a reasonable opportunity to put their own points forward. I do not consider that fairness required that they were able to listen to every single word that the Inspector heard.
33. In advance of the second session the Planning Inspectorate said that it would be necessary to "re-run the Hearing". Consistently with that indication the Inspector used the same agenda (with the minor addition that Burnett LJ has mentioned). He outlined the main issues, just as he had at the first session. He then required the appellant to summarise its case, which it did. The two questions of the agricultural quality of the land and the housing supply were fully discussed. Ms Smith's notes record a number of interventions by members of the public raising such points as the setting of the application land, the impact on wildlife, the visual impact of the development, the importance of open space, concern about trees, the lack of public transport, pressure on schools and surgeries, the existence of alternative sites, traffic congestion, lack of parking and noise. Those notes demonstrate that the public had every chance to put their points forward.
34. It is also right to say that the complaint made by the Objectors has been a shifting one. If there is a substantial complaint of unfairness one would expect it to have been identified, and to have remained constant. The original complaint, as Burnett LJ has said, was that the hearing should have taken place before a different inspector. The judge rejected that complaint, and it has not been renewed. It was then said that the questions of the quality of agricultural land and the housing supply had not been adequately discussed at the second session. That complaint was made only in the course of counsel's reply before the judge. But when the appeals were opened before us by reference to Ms Smith's notes, it became clear that there was no substance in that complaint either. In supporting the judge's judgment Ms Graham Paul accepted that no main matter was excluded from the second session. Instead her complaint was that objectors could not participate in the discussion. But the notes show that the public raised a myriad of points. Having retreated from that ground, Ms Graham Paul said that the public were "on the back foot"; and that it was not clear what the parameters of the second session were. But that complaint founders when it is clear from the notes that the Inspector summarised the issues at the start of the second session, and required the main parties to summarise their respective cases again. She then said that the public were not brought into the discussion with sufficient depth. But since part of the discussion concerned technical matters of planning policy and the calculation of housing supply, I do not consider that this is a criticism of any force. She also sought to rely on the fact that the Inspector headed his decision letter "Hearing held on 11 April and 7 June 2012" and invited the inference that he must have relied on things that were said at the 11 April session. I reject that submission. The first session took place in reality and it would have been quite wrong for the Inspector to have airbrushed it out of history.
35. As far as I can see the Inspector was scrupulously fair to the objectors; and the criticisms of him are without foundation.

Lord Justice Longmore

36. I agree with both judgments.