Inspectors’ reasons and expert evidence

Inspectors’ reasons and expert evidence


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Justine Thornton appeared for the Secretary of State in Georgiou v. Secretary of State for Communities and Local Government [2011] EWCA Civ 775.  Gordon Nardell QC acted for the wind farm developer in RWE Npower Ltd v. The Welsh Ministers [2011] EWHC 1778 (Admin).  As well as reasons, the cases also dealt with some interesting questions of procedural fairness. 

In Georgiou v. Secretary of State for Communities and Local Government [2011] EWCA Civ 775, the Court of Appeal quashed an inspector’s dismissal of a written representations appeal against a condition imposed on retrospective planning permission for a restaurant and bar. 

The condition required the folding doors to the front of the premises to be fixed shut during operation.  The appellant’s acoustic expert provided a report which found that sound equipment limited to an appropriate level would not cause disturbance to local residents even with the doors open.  The inspector based his decision on his own observations on site coupled with objector representations, concluding “on the balance of probability there would be likely to be occasions – perhaps many occasions – when with the doors open the noise… would not be adequately contained within the premises”.  The Court of Appeal referred to the well-known passage about reasons in the judgment of Lord Brown’s in Porter v. South Buckinghamshire DC (No. 2), emphasising that “the required degree of particularity… reasons depends entirely on the nature of the issues falling for decision.”.  The uncontradicted acoustic report dealt quantitatively with background noise levels near the premises and likely levels of breakout noise from equipment used inside. 

The court rejected the appellant’s attempt to impose an obligation on an Inspector in a written representations appeal to ‘cast around’ for alternative conditions where none had been proposed by either party.  To have held otherwise could have had significant implications for the speed and economy of the written representations procedure.  The court accepted the Secretary of State’s argument that while there may be exceptional cases where it would be appropriate for an inspector to volunteer a modification to a planning condition even though not expressly requested, the present case was not one of them. 

However, that did “not exonerate the inspector for failing to give any reasons for rejecting the analysis and conclusions in the report”.  The omission left the appellant “materially in the dark” about the prospects of obtaining an alternative permission.   

 Justine Thornton appeared for the Secretary of State.

The following day, in RWE Npower Ltd v. The Welsh Ministers [2011] EWHC 1778 (Admin), Beatson J quashed a decision by the Welsh Ministers to refuse planning permission for a 19-turbine wind-farm at Mynydd-y-Gwair near Swansea.  The Minister accepted the inspector’s recommendation for refusal on the basis of unacceptable impact on peat bog habitat.  One turbine and its associated access tracks in particular were located on deep peat deposits.  The Countryside Council for Wales objected to the development but confined its inquiry evidence to a written statement.  For the appellant, experts on ecology and hydrology gave inquiry evidence that the impact after mitigation measures – in particular a “floating roadway” method for constructing access tracks – would be minor.  Neither witness’s views were challenged on cross-examination or on questioning from the inspector.  The inspector concluded, however,  that the harm would be “significant”.  He indicated that he had reached his views based on his observations on site and “having regard to the appellant’s evidence”, though he did not indicated in what respect he disagreed with the two experts’ conclusions. 

Beatson J referred to the comments of Bingham LJ in Eckersley v Binney (1988) 18 Con LR 1 that “a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal…” and of Henry LJ in Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 that “where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other”.  These were civil cases but the reasoning in Flannery was applied to an inspector’s decision in Dunster Properties v FSS [2007] EWCA Civ 236.  Here, the appellant could not tell from the inspector’s report and Minister’s decision why they had rejected the clear conclusions of the two experts. 

Beatson J also indicated that in the circumstances, the inspector should have put his doubts to the witnesses so as to give the appellant a fair opportunity to deal with those doubts.

Gordon Nardell QC appeared for RWE Npower.

 


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