On the 5th December 2014, the Court of Appeal allowed an appeal by the Secretary of State for Communities and Local Government and Taylor Wimpey Ltd against the objecting residents in Great Dunmow, who had successfully challenged a previous appeal decision on the basis of material prejudice at the hearing.
The original application for outline planning permission to erect 100 new houses on a site in Essex was not granted. However, Taylor Wimpey Ltd- the developer- appealed by hearing, and on the 12th July 2012, the Inspector allowed the appeal.
Subsequently, the residents of Great Dunmow in Essex instigated a claim under the provisions of section 288 of the Town and Country Planning Act 1990 to challenge the decision of the Secretary of State in the grant of planning permission on appeal to the developer. They believed that the appeal was incorrectly determined- particularly given that the decision was made by hearing rather than inquiry- and were consequently successful in challenging the decision on the ground of procedural unfairness.
However, in the instant case (whereby the developer and the Secretary of State contended that the judge had erred in concluding that the applicable appeal hearing was procedurally unfair) the judge stated that the objectors did not suffer material procedural unfairness and the judge had made a misinterpretation in holding that there had been procedural unfairness.
In this case, Lord Justice Burnett stated that one of the ways of appealing against a refusal of planning permission was by way of a hearing rather than an inquiry. He specified that although the procedure at a planning hearing lacks the formality of a planning inquiry, the standards with regard to procedural unfairness in inquiries are very similar.
The cases of Hopkins Developments Ltd v Secretary of State for Communities and Local Government and Fairmount Investments Ltd v Secretary of State for the Environment demonstrate the factors the a judge will examine in determining whether there has been procedural unfairness. Lord Justice Jackson stated that a judge must look at "whether there had been procedural unfairness which materially prejudiced the person concerned" and Lord Russell of Killowen specified whether such a person had had a "fair crack of the whip." Following the principles in these cases, the judge will take into account whether the objectors have had a reasonable opportunity to raise their points in the course of the hearing, and if not whether they have suffered any material prejudice.
Applying those principles to the instant case, the conclusion was that the judge had erred in holding that there had been procedural unfairness. The case held that the objectors had not suffered material prejudice from the way the hearing had been held, as they had been aware of the key points of the planning application which they opposed, they had been given a reasonable opportunity to express their opinions and had been notified of the relevant time and place of the hearing. Consequently the appeal was allowed.
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