North Norfolk District Council v Secretary of State for Housing Communities And Local Government [2018] EWHC 2076 (Admin)

[2018] EWHC 2076 (Admin)Case No CO/1319/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/08/2018
Before
MR JUSTICE OUSELEY
Between
NORTH NORFOLK DISTRICT COUNCILClaimantSECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENTDefendant(1) GENATEC LIMITEDInterested Parties(2) SELBRIGG GENERATIONInterested Party(3) NO TO THAT TURBINEInterested Party
MS ESTELLE DEHON(instructed by EASTLAW) for ClaimantMR LEON GLENISTER(instructed by THE GOVERNMENT LEGAL DEPARTMENT) for DefendantThe Interested Parties were not present or representedHearing Hearing dates: 25 July 2018
Judgment ApprovedMR JUSTICE OUSELEY :
[1]On 2 March 2017, following a six day Public Inquiry into conjoined appeals, an Inspector granted planning permission for the erection of two single wind turbines on two sites, separated by a mile or so, in the area of North Norfolk District Council. His two decisions were challenged by the Council under s288 of the Town and Country Planning Act 1990. The Secretary of State conceded that the challenge should succeed on two of the four grounds raised; the decisions were quashed by consent on 24 May 2017. The other grounds were neither argued nor conceded. The Secretary of State acting through his delegate, the Planning Inspectorate, PINS, decided initially that the appeals should be re-determined at a further Public Inquiry before a different Inspector. The new Inspector examined the file, whatever that might have been, and considered that the issues could be dealt with by written representations. PINS gave the parties the opportunity to comment on this suggestion. The two planning appellants agreed. The Council and the main group of local objectors, NOTTT, did not and contended that the appeals should be re-determined by way of Public Inquiry. PINS decided against a Public Inquiry in an email of 8 January 2018. Following a threatened judicial review, PINS wrote a more detailed letter of 14 February 2018, explaining its decision and answering criticisms made of its earlier email. The two contain the decision under challenge.[2]The essence of this challenge is that PINS did not interpret or apply properly the published criteria for the mode whereby quashed planning appeals are to be re-determined, though a variety of points were raised around that general theme. It is not a rationality challenge.[3]I note that this challenge is brought by way of judicial review. A question was raised on the paper decision as to whether the correct route was a statutory challenge under s288. It makes no real difference at this stage, in view of the shortened time limits for judicial review in planning cases, and the permission stage in statutory appeals. But without further elaboration, it seemed to me that these proceedings were properly judicial review proceedings and not caught by s284(3)(b) as a “decision on an appeal under s78,” the only ouster category which could potentially apply.

The legal framework for re-determination

[4]S319A provides generally for determination by the Secretary of State as to which procedure for determining an appeal shall be followed. It applies to appeals generally, including those which fall to be re-determined after the quashing of a decision on an appeal. It states: “(1) The Secretary of State must make a determination as to the procedure by which proceedings to which this section applies are to be considered. (2) A determination under subsection (1) must provide for the proceedings to be considered in whichever of the following ways appears to the Secretary of State to be most appropriate –(a) at a local inquiry;(b) at a hearing;(c) on the basis of representations in writing. … (4) A determination under subsection (1) may be varied by a subsequent determination under that subsection at any time before the proceedings are determined. … (6) The Secretary of State must publish the criteria that are to be applied in making determinations under subsection (1).” (2) A determination under subsection (1) must provide for the proceedings to be considered in whichever of the following ways appears to the Secretary of State to be most appropriate – (a) at a local inquiry; (b) at a hearing; (c) on the basis of representations in writing. …[5]The Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 SI No.1625 provide for the procedure following the quashing of a decision as follows:
“20 (1) Where a decision of an inspector on appeal in respect of which an inquiry has been held is quashed in proceedings before any court, the Secretary State – (a) shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of matters with respect to which further representations are invited for the purposes of his further consideration of the appeal; and (b) shall afford to those persons the opportunity of making written representations to him in respect of those matters or of asking for the re-opening of the inquiry; and (c) may, as he thinks fit, cause the inquiry to be re-opened (whether by the same or a different inspector), and if he does so paragraphs (2) to (7) of rule 10 shall apply as if the references to an inquiry were references to a re-opened inquiry.” (a) shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of matters with respect to which further representations are invited for the purposes of his further consideration of the appeal; and (b) shall afford to those persons the opportunity of making written representations to him in respect of those matters or of asking for the re-opening of the inquiry; and (c) may, as he thinks fit, cause the inquiry to be re-opened (whether by the same or a different inspector), and if he does so paragraphs (2) to (7) of rule 10 shall apply as if the references to an inquiry were references to a re-opened inquiry.”
[6]The criteria required by s319A(6) are set out in the Procedural Guide to planning appeals in England published by PINS in August 2016. They were, so far as material, the same when the decisions were first made as to how the appeals were to be determined. The two relevant Annexes are K, which deals with appeals in general, and L which deals with challenges to appeal decisions. I set out the material parts of each, emboldening as in the original. “K Criteria for determining the procedure for planning, enforcement, advertisement and discontinuance notice appeals The criteria for each procedure cannot be fully prescriptive or entirely determinative: they require judgement to be applied using common sense. More than one criterion may apply. Written representations – written representations would be appropriate if:• the planning issues raised or, in an enforcement appeal, the grounds of appeal, can be clearly understood from the appeal documents and a site inspection (if required); or• the issues are not complex and the Inspector is not likely to need to test the evidence by questioning or to clarify any other matters; or … Hearing – a hearing would be appropriate if: …• the case has generated a level of local interest such as to warrant a hearing … Inquiry – an inquiry would be appropriate if:• there is a clearly explained need for the evidence to be tested through formal questioning by an advocate; or• the issues are complex; or• the appeal has generated substantial local interest to warrant an inquiry as opposed to dealing with the case by a hearing; or…” The footnotes to “complex” and “substantial local interest” read respectively:
“For example where large amounts of technical data are likely to be provided in evidence.” “Where the proposal has generated significant local interest a hearing or inquiry may need to be considered. In such circumstances the local planning authority should indicate which procedure it considers would be most appropriate taking account of the number of people likely to attend and participate at the event. We will take that advice into account in reaching the decision as to the appropriate procedure.”
L.12 expressly deals with “What happens if a challenge is successful.” “L.12.2 The appeal will usually be decided by either further written representations or an inquiry. We will rarely arrange a hearing even if the original appeal was dealt with this way. We consider that a hearing decision that has been examined in the formal setting of the High Court would normally need to be re-determined under the formal inquiry procedure, in order to allow a full examination of the legal issues raised. However, where all parties agree that a hearing would be appropriate we will take this into account when determining the procedure for the re-determined appeal. L.12.3 Where the appeal was originally dealt with by written representations, we would normally re-determine it by means of further written representations. However, where there has been a material change in circumstances, we may consider this is no longer the most appropriate procedure; having regard to the criteria (please see Annexe K). L.12.4 Where the appeal was originally dealt with by an inquiry, it will probably be re-opened. Where there have been significant changes in circumstances (eg new legislation or local or national policies) since the original inquiry or hearing the Inspector would normally allow further evidence to address these.” • the planning issues raised or, in an enforcement appeal, the grounds of appeal, can be clearly understood from the appeal documents and a site inspection (if required); or • the issues are not complex and the Inspector is not likely to need to test the evidence by questioning or to clarify any other matters; or … Hearing – a hearing would be appropriate if: … • the case has generated a level of local interest such as to warrant a hearing … Inquiry – an inquiry would be appropriate if: • there is a clearly explained need for the evidence to be tested through formal questioning by an advocate; or • the issues are complex; or • the appeal has generated substantial local interest to warrant an inquiry as opposed to dealing with the case by a hearing; or…”

The facts

[7]In 2016, a Public Inquiry had been arranged for the appeal in relation to the single turbine at Pond Farm, Bodham. The appellant in the Selbrigg Farm appeal sought a hearing rather than a Public Inquiry, “given lack of complexity to warrant an Inquiry” among other matters. PINS decided, however, that a Public Inquiry was also appropriate for that appeal. PINS, in its email of 25 February 2016, was “mindful of the significant raft of evidence which has been submitted in support of the appeal (which seems to contradict Eversheds’ assertion of the lack of complexity)” which told against a hearing. There was also “substantial local interest”, in the form of 700 representations at the application stage. PINS was “therefore firmly of the view that, in line with the criteria at Annexe K…, an Inquiry is the most appropriate procedure.” The appeals were then conjoined, given that the schemes were similar, both “heavily opposed by local residents”, both refused for very similar reasons and were about a mile or so apart. I note that the Inquiry was justified separately for each turbine alone.[8]The Inquiry proceeded; the decisions were quashed by consent, on the Council’s application, on two of the grounds raised but without judicial decision on the others. There would be no value to the claimant in contesting the case further even if the other grounds were strong, or even stronger than those on which the defendant chose to concede; and a court would be reluctant to see its resources absorbed in such a contest. The decisions having been quashed, the appeals remain to be decided.[9]The first letter after that from PINS, dated 25 July 2017, and before any representations as to the mode of re-determination were considered, stated “Having regard to the published criteria pertaining to s319A…we consider that the appeals should be determined on the basis of a local inquiry/re-opened local inquiry.” The Inspector would consider the previous evidence unless expressly superseded. PINS invited the parties to send further representations covering any material changes, and commenting “on the specific issues upon which the appeal was quashed.” If a party felt that a different procedure should be considered for the re-determination, their reasons, having regard to the published criteria, should be sent at the same time.[10]By a letter of 15 September 2017, PINS wrote “to confirm” that the appeals would be re-determined following a re-opened local Inquiry, conducted by a different Inspector. Arrangements were made for the submission of evidence; a timetable for witnesses was requested, and later provided. There appear to have been no representations by any party that the appeals should proceed in a different manner.[11]The new Inspector then reviewed the appeal files. On 19 October 2017, PINS emailed the parties saying that he had done so and “notes that the issues are visual in the main. He considers that potentially it may be possible to deal with the appeals by way of written exchange along with an accompanied site visit(s) carried out in accordance with a schedule of viewpoints identified by the main parties.” The parties’ views were sought. A variety of concerns were raised, but on 23 October, PINS emailed the parties, saying:
“The Inspector considers that the previous decisions identify the main issues as, put simply, the impact on the landscape, the setting and thereby the significance of a range of designated heritage assets, and the visual amenity. Those, and a range of ‘other matters’ were considered in the light of the benefits that the proposals would come forward. The decisions were quashed on relatively narrow grounds – the cumulative impact of the two wind turbines on the heritage assets and application of CS Policy EN7. In correspondence since the original decisions were quashed, the main parties have all confirmed that there has been no material change in circumstances since the original appeals were determined. In the context of what is set out above, the Inspector considers that an inquiry may not be necessary. The issues are visual, in the main, and landscape, heritage and visual impact are not necessarily complex. He also considers the public interest in these cases could potentially be dealt with through the written procedure.”
[12]Further exchanges took place; there was a clear difference of approach between the planning appellants, who both favoured proceeding as PINS was now suggesting, and the Council, with NOTTT, who favoured proceeding as PINS had thought appropriate up till 19 October. On 8 January 2018, PINS sent to the parties its first decision that the written representations procedure would be followed:
“We are of course aware that following the quashing of the original decisions, both cases need to be considered anew. We are also very aware of the extent of local feeling. That said, having considered the cases advanced, and in the knowledge that there has been no significant change in circumstance since the original decision were made, we are firmly of the view that a Public Inquiry in unnecessary and the issues raised in these cases can be dealt with perfectly adequately through the written representations procedure, informed by an accompanied site visit. This is because there are no complex issues involved and there is no need to test or clarify evidence – everything that has been set out in writing (or is yet to be – see below) can be clearly understood.”
[13]This led to a further exchange and a pre-action protocol letter, raising issues which the Council said had been ignored. PINS undertook, in response, to make a further decision, which it did. That is the letter of 14 February 2018, which states that it is to be read with the 8 January letter, and which together make up the decision challenged in these proceedings. It needs to be set out at some length:
“5. The Council responded on 3 November, [to the suggestion that the decision be re-determined through a written representations procedure] after having sight of the above comments [from NOTTT and the appellants]. They recognised the likely cost of a further inquiry, but felt that our preliminary assessment and issues were too confined, and they set out the areas in which there was dispute including landscape and visual impact; the impact on heritage assets and the “correct approach to and application of section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990”
. They added that the written representations procedure would not enable cross examination of opposing expert witnesses, and stressed that focusing on the matters that arose from the successful challenge was legally flawed given the need for the appeals to be determined, in their entirety, de novo. 6. We would agree that the previous decisions (of Inspector Braithwaite) cannot form part of the evidence base in the re-determination of the appeals; as the Council in particular said, those decisions “…must be disregarded in their entirety, as though they never existed”. However, the evidence that was presented to Inspector Braithwaite remains extant, is still in the public domain, and falls to be considered afresh as it would through our chosen procedure. 10. The Secretary of State will determine the procedure for proceedings in accordance with Section 319A of the Town and Country Planning Act 1990 (as amended), which gives complete discretion to the Secretary of State to determine the procedure under which appeals will be dealt with, as well as the Procedural Guide. 12. Annexe L says, in considering the procedure for an appeal following the previous decision being quashed, that “[w]here the appeal was originally dealt with by an inquiry, it will probably be re-opened”. The word “probably” is very important here, as it does not proscribe the procedure for the re-determination of these appeals, and the Annexes in the guidance must be considered in their entirety. Clearly the procedure that the appeals originally followed is a very important consideration, but it is not prescriptive, and cannot pre-determine the procedure they will follow in their re-determination. Thus we cannot agree that our guidance creates a “presumption” that the appeals will be re-determined following another inquiry (indeed, were it to do so, it would fetter the Secretary of State’s discretion under section 319A). 13. In conclusion, while we respect the Council’s view, we have correctly applied Annexes K and L of our published guidance in coming to our view that the appeals can be re-determined under the written representations procedure. 14. For the avoidance of doubt, even if Annex L did create a presumption in favour of an inquiry being re-opened following a High Court challenge, we would find that such a presumption was rebutted for the reasons set out in the 8 January 2018 decision, and in this decision letter. Local interest 15. We have already explained, in our decision of 8 January 2018, that we are aware of the extent of local feeling. NOTTT took an active role at the inquiry, as a Rule 6 party on the Pond Farm appeal, and had indicated they wished to resume that role, and were minded to seek Rule 6 status on the Selbrigg Farm appeal as well. We would wish to assure NOTTT and of course all interested parties, that the written representations procedure does not preclude full participation of local people, individually or collectively, and Inspectors must have regard in their decisions to all representations submitted. Furthermore, and particularly given their previous involvement, we offered NOTTT the chance to submit a further statement of case. We will be inviting the Council to re-notify local people and to set a date by when any further comments can be submitted to us. NOTTT may at this point refer to their observation, referenced above, of local confusion arising from “…continuous requests to send in letters of objection…” but there can be little doubt that local people are being invited to make all their concerns known. 16. Finally on this matter, it has been established in Westerleigh Group Ltd v SSCLG [2014] EWHC 4313 that local interest is not something that can on its own require an inquiry. To that we would add that we do not consider there is a need for evidence to be tested through cross-examination in this appeal. Complexity of issues 17. We turn now to the likely complexity of the issues, and the suggestion that we have not fully considered this. We have taken the view that the cases can be dealt with through the written representations procedure because while there may be differences of opinion over landscape character and impact – which can readily be described in written submissions – the essential judgment on this point will rest on what the Inspector sees during his/her visits to the respective sites. 18 As far as any impact on the setting of designated heritage assets is concerned, and the correct interpretation of section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, the law is settled on this point, after [two decisions]. Thus there is not felt to be a need to go over that ground again in oral submissions, or in cross-examination. Alleged increased risk of legal error 20. It is not clear why the Council considers the use of the written representations procedure will lead to “…an increased risk of legal error”, and we cannot agree with this suggestion. While the appeals were originally considered at an inquiry, the decision to hold an inquiry was taken when the Pond Farm appeal was received in late 2015 (and the Selbrigg Farm appeal was conjoined to the inquiry when that appeal was received a few months later, and it was felt to justify an inquiry in its own right). But the decision to hold an inquiry was taken in the light of the information available at the time, and as set out above we do not consider it ties the Secretary of State’s hands to now hold another inquiry; not least because there is evidence taken from the first inquiry which is relevant to the fresh decision, and there is considerably more clarity now on the issues than there was when the inquiry procedure was originally decided upon.” Local interest Complexity of issues Alleged increased risk of legal error

The grounds of challenge

[14]I need to deal with three points before turning to the grounds. First, the letter of 14 February makes it clear that the appeal will be re-determined afresh and in whole. The previous Inspector’s decision will play no part in the re-determination; and the re-determination will not be confined to those aspects upon which the decision was quashed or indeed to those aspects in respect of which a challenge was raised. I emphasise that because there were passages in the Grounds of Defence and in the Skeleton Argument of Mr Glenister for the Secretary of State which suggested that the re-determination would be confined in some way. I do not need to go into why those passages appeared, and the arguments which might be raised over whether that could be a proper approach to some re-determinations, and my comments imply no criticism of those documents. But for present purposes there is no doubt, and Mr Glenister confirmed expressly, that the approach stated in the letter of 14 February was the approach which PINS would follow. As the letter states, the written evidence and representations placed before the previous Inspector can properly be used in the re-determination, with such updated material as the parties submit.[15]Second, I also note that the original suggestion from the new Inspector, as to why a written procedure could be adopted, did refer to the limited basis upon which the decision was quashed as a factor showing the appropriateness of the written procedure. There is no direct evidence that he has taken the same view, knowing now that the whole falls for re-determination. Mr Glenister told me, and I would have inferred anyway in view of this Inspector’s intended role, that PINS asked him whether that remained his view in the light of the scope of the re-determination being broader than he had thought, and that he has not changed his view. The alternative, and less probable inference, would be that PINS was prepared to saddle him with a procedure for dealing with the two appeals based on what it knew to be his incorrect assumption as to its scope. In fact, the procedure for re-determination by a written procedure has continued according to the timetable set by PINS; the procedure has not been put on hold to await the outcome of these proceedings. The complaints about its timetable are not before me.[16]That leads on to the third point, about the scope of the written procedure. Mr Glenister rightly pointed out that the appeals were not being re-determined by the use of the procedure in statutory rules for determining appeals by written representations. These rules, which govern appeals by written representations as described in Annexe K to the Procedural Guidance above, are the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009 SI No.452. This procedure involves the production to the Inspector of the notice of appeal and the appellant’s representations, and the local authority questionnaire and documents referred to in it. There are provisions for the notification of interested persons, as defined, and for them to provide written representations. But there is no provision requiring them to have the opportunity to comment on what the main parties have said, nor do they see the main parties’ response to them.[17]Mr Glenister correctly submits that the written procedure proposed here is not a return to that form of written procedure, precisely because of the way in which the evidence before the previous Inspector will be considered. The issues should have been refined through the parties’ Statements of Case and the Statement of Facts and Common Ground, limited though the latter may be in substance; the whole of the written evidence, including the written representations and proofs of interested persons or third parties, from the previous Inquiry, will be available. The letter of 8 January stated much the same as in [15] of the letter of 14 February 2018, above, to the effect that local people can submit further representations to PINS, which can take that material into account. It is not suggested that they can submit further representations based on the further material submitted by the main parties. The process of reply by the one to the other, of course, has to end somewhere, as it does in any form of process. This particular limitation is inherent in the written representations process because of the number of copies of lengthy documents from the main parties which would have to be created. Inquiries, by contrast, with significant public interest can have a “library” of such documents. With that, I turn to the specific Grounds.

Ground 1 The misinterpretation of the Procedural Guidance

[18]Ms Dehon for the Council submitted that PINS had misinterpreted this guidance in two respects. First, the discretion had wrongly been described as “complete”, not only in the decision under challenge but in the pre-action correspondence. Though corrected there to a “wide” but “constrained” discretion, this subsequently revealed error was said to show that the decision remained infected by it. Second, PINS had failed to appreciate that Annexe L created a “presumption” in favour of re-determination by an Inquiry, which PINS wrongly denied, and then compounded its error by saying that a “presumption” would have fettered its discretion. By themselves, there is nothing in those points.[19]Mr Glenister, not to be outdone in this field, suggested that when L. 12.4. said that, where an appeal was dealt with by an Inquiry, “it will probably be re-opened”, it was no more than a statement of objective fact and contained no more information about how PINS would approach the matter, than if the decision were the outcome of a process which it simply observed but into which it had no policy input. Such a linguistic analysis is usually deprecated by the Secretary of State in defending his decisions. I cannot distinguish L12.4 from the different language used elsewhere in L12.2, which does not amount to a mere statement of past outcomes: (my italics illustrate the point) in L12.2, “the appeal will usually be decided… L12.3 “…we would normally re-determine it…L12.4 “...it will probably be-reopened… the Inspector would normally allow…”. PINS is telling the parties and public what they can normally expect because that is how, for good reason, PINS approaches the decision on mode of re-determination. Nor was I prepared, in rejecting Mr Glenister’s submission, to accept Ms Dehon’s reply that it must be taken to represent the considered views of the Secretary of State, who, fixed with the submission of his advocate, as much as if it were his own formal decision, could be thus fixed with his advocate’s error. The forensic appeal of such an argument is sometimes best resisted.[20]This debate, truncated though it was, was still singularly unilluminating. I prevailed upon the advocates to focus on the substance of the Guidance, and its proper role.[21]They were prepared to agree that the criteria in the Guidance were more than just factors to which regard had to be had by PINS when considering how to exercise the discretionary powers as to which of the modes of re-determination would apply. The criteria were published pursuant to a statutory duty in s319A(6). The Rules provide the options which the Secretary of State has, and between which he may choose “as he thinks fit”. The legal effect of the Guidance was that the decision had to accord with the criteria, unless PINS decided that circumstances warranted a departure from them, for which it should provide a reasoned explanation. Indeed, the emboldened introduction to Annexe K treats the criteria perhaps as more constraining than the law would otherwise require.[22]The one passage in the Guidance which deals with the re-determination of appeals originally dealt with by an Inquiry is at L.12.4. Its sense is perfectly clear and requires no further characterisation to give it meaning or effect. PINS has decided upon a course other than the normal one; it is entitled to do so. It must explain why, giving lawful reasons. Annexe L furnishes no basis for deciding otherwise than to do what is normal. Annexe K is not the starting point; its criteria may provide the basis for a decision other than the normal. An Inquiry was originally thought appropriate, however, for each proposal because in each case one or more of the Annexe K criteria for an Inquiry was met. The email from PINS of 25 February 2016 shows that the “complexity” and “sufficiently substantial local interest criteria” were met. It follows that the second of the two criteria, which could have enabled the appeals to have been dealt with by written representations, was not met: lack of complexity. The nature of the criteria, however, means that one or more of the criteria for, say, a written representations procedure could be met, yet an Inquiry could still be held, because more weight was given to criteria telling in favour of an Inquiry. The criteria are also not simply counterparts of each other, or different in degree from each other, in relation to each mode of redetermination. Some differ in nature or issue.[23]The question for the Court is whether the decisions and their reasons show that the Guidance and criteria were misinterpreted or not applied. There is no challenge, as I have said, to the rationality of that decision. Neither letter explicitly addresses the issue of the mode of re-determination on the basis that the normal decision would be that there should be a new Inquiry. The 8 January email reads as if the decision were being taken by applying the Annexe K criteria, without Annexe L as the starting point. The 14 February letter in [12] explains how limited the role of Annexe L is: it “probably” does not “prescribe” or “pre-determine” the procedure. This is true but not the point, the language was dealing with the Council’s contention, which was not quite to the point either. It does recognise that the previous procedure “is a very important consideration”. But it is more than that; it is a statement of how the re-determination will take place, unless there is good contrary reason. There will normally be an Inquiry because by implication, an Inquiry was the process properly undertaken in accordance with the criteria from which the unlawful decision emerged. Those paragraphs show that Annexe L has not been understood or addressed, thus far.[24]Mr Glenister pointed then to [14] of the 14 February letter; the answer would have been the same if there had been a “presumption” in favour of an Inquiry. Whilst that word may be inappropriate, it is the closest to the true position of those found in the decision letters. It is unfortunate that the analysis closest to the correct position is not the main analysis upon which the decision is based. But [14] is clearly saying that, had PINS asked itself whether there were good reasons for departing from its normal practice, it would have found that there were; and those reasons are in the 8 January decision and in the 14 February letter. So those reasons are crucial to the lawfulness of the decision.[25]The positive reasons for its decision are more to be found in the 8 January 2018 email, with the response to the challenges made by the Council in the more elaborate 14 February decision. The 8 January 2018 email makes clear that it was not holding a new Inquiry for these reasons:(1) PINs now knew far more about the cases being advanced, since it had all the evidence from the previous Inquiry;(2) there had been no significant changes in circumstances since the Inquiry in relation to evidence required;(3) the criteria of complexity and of the need for formal questioning were not now met, in the light of the new Inspector’s appraisal of the issues based on the evidence at the previous Inquiry; (PINS may be saying that, with the benefit of hindsight, they were not met in the first place either);(4) a written representations procedure could deal with what needed to be dealt with. PINS, as I have explained, was not simply reverting to the Annexe K written representations procedure. It was adopting a variant of it, in the light of the previous Inquiry, to deal with the further material. The February letter deals rather more with the significance of local residents’ and local bodies’ opinions. The 8 January 2018 email says no more than that PINS is aware of its extent.[26]Crucial therefore to the PINS decision, and to its reasons for departure from the normal in not holding a further Inquiry, is its judgment as to what it had learned from the previous Inquiry, and what more was required for this one. Although [14] of the February Decision Letter is the only part of either which approximates to the legal framework within which the mode of determination had to be decided, there are difficulties with four of the five reasons. The second reason, that there has been no significant change in circumstances that requires further contentious evidence is plainly material. The others can be seen as no more than is inherent in the fact that there has already been an Inquiry and a further decision taken on mode of re-determination. Yet those are the factors inherently present when L12.4 states there will normally be an Inquiry, unless it is redundant. Reasons for a departure from the normal are required which are not reasons furnished by those normally present.[27]As to the first reason, it would be normal, unless things went awry in the Inquiry process itself, for PINS to have all the relevant written material from the earlier Inquiry in precisely these circumstances. The third reason, the ability of PINS to reach a more informed view than would have been possible in 2016, in the light of the material now available to the Inspector, would be normal after an Inquiry leading to the quashed decision. The fact that a different view as to the mode of determination has now been formed is relevant, and is a necessary condition for the decision that, unusually, no further Inquiry is necessary. But if such a decision were all that was required, the Guidance in Annexe L would simply have said so, leaving L12.4 otiose. The fourth reason, that written representations and site visit now suffice, is the other side of the third reason. Such a view is a necessary but not sufficient part of the decision. Were it sufficient, Annexe L would simply say that a fresh decision based on Annexe K criteria would be taken; but it does not do so. The fifth reason, the degree of local interest, is dealt with in the February letter. It is clearly not a factor relied on against an Inquiry, but reasons are given as to why it can be coped with in the further written representations procedure.[28]However, I have concluded that this approach is in its turn too legalistic. The decision which statutory provisions require to be made is whether these appeals now require re-determination by Inquiry, which is recognised to be the costlier of the two routes in play. The crucial change is that there has been an Inquiry which has received all the written evidence and representations, including local representations on that evidence. This is significant in two respects: first it enables the decision on the mode of re-determination to be made on a better informed basis than would have been possible in 2016 before the pre-Inquiry stages had even commenced. Second, the material available for use in the re-determination itself will have been through an Inquiry process, at least refining the issues and enabling the recorded fruits of the oral process to be placed before the new Inspector.[29]The new Inspector, who is to decide the appeals, was able to assess all the evidence and written submissions placed before the previous Inspector, with a view to suggesting the mode of re-determination. He made his recommendation having considered complexity and the need for formal questioning; that is a judgment which would have been rather more difficult when the pre-Inquiry stages had yet to be undertaken and the evidence had not been presented. The judgment about how complex the issues actually are, the need for testing through advocates, and how they can be resolved with further written representations and a site visit, is very much a matter for the expertise of the Inspector. It is an unchallengeable judgment, and a necessary part of the decision as to the mode of re-determination.[30]Specifically on the need for oral testing of evidence, the parties could also furnish their notes of important oral evidence, their closing submissions about it or further written representations about that evidence which means that the new Inspector could have, if the parties so chose, information gleaned from oral evidence and the parties’ contentions as to the soundness of the judgments and qualities of the various expert witnesses.[31]I note that it was not said to PINS by the Council that oral advocacy had achieved notable success or that the opposing witnesses had been shown to be unreliable or lacking in the expertise or other qualities necessary to judge their evidence, and that the absence of the opportunity for cross-examination would enable the vague and the inaccurate to stand, and the limitations of any given expert to escape proper exposure for the Inspector’s consideration. The absence of such an evidence-based submission to PINs suggests that PINS had no concrete basis, in relation to the need for oral testing, on which to judge that it had been important and effective at the previous Inquiry, in resolving the asserted complexities, and differences of views among the various experts, on landscape character, and heritage significance and impact. This is touched upon in [16].[32]One reason for holding an Inquiry, namely the extensive local interest, suffers from the reasoning in the decisions. Its extent is acknowledged in the 8 January letter, but its relevance to the criteria, and to maintaining the previous mode of determination is not mentioned. The 14 February letter at [15] acknowledges it but takes the issue no further in relation to Annexe K. It does not feature as a reason why the previous decision, which was based in a significant part on that particular criterion, should be maintained, as had originally been envisaged. The comment that, “the written representations procedure does not preclude full participation of local people” seems barely to register the way the criteria are worded. It is clear that the criteria treat that level of interest as sufficient of itself to justify an Inquiry although it does not require an Inquiry, as [16] says. It is correct that Westerleigh Group does say what [16] says it says, and is correct in so saying. But if PINS were also relying on what else Wyn Williams J said in [37] of that case, it may have applied his comment that the criteria “certainly allow for the possibility that an inquiry should be held in those circumstances”. I am of the view that the criteria go rather beyond allowing for the possibility. They are more than a factor to be considered. The level of public interest can of itself justify an Inquiry, even where the issues are not complex, and written representations would be adequate. Once the requisite level of public interest satisfies that criterion as, in reality, it is acknowledged it does, the reason why the criterion did not lead to a further Inquiry should have been better set out.[33]However, the written representation route is not the same as that described in Annexe K. Annexe K does not really assist on this point, because it is not addressed to written representations in the context of a re-determination following an Inquiry. This is not just as a matter of form, but is a matter of substance, precisely because there has been an Inquiry. The Inquiry would have enabled local residents and bodies to comment on the written and oral evidence of the appellants and Council. If set out in their written representations to the previous Inspector, their evidence will have been fuller and more informed about the case they opposed than under an Annexe K written representations procedure, precisely because they will have heard the evidence they oppose. They will now be in a position, in their further written representations to comment further in writing on what was said at that Inquiry, especially if they relied only on their oral remarks.[34]A rational PINS can say, given the other factors, notably the previous Inquiry, the nature of the issue, the representations received and to be received, that substantial local interest does not of itself justify a further Inquiry. Although the framework for its decision is rather askew, the role of that criterion was dealt with.[35]Where an Inspector has considered the previous Inquiry papers, rationally concluded that further written representations and site visit are all that is needed in the light of the fullness of the material already submitted, and the absence of significant changes in circumstance, it is difficult to say that the Guidance in L12.4 must be read as requiring something more. A considered and rational view that, in all the circumstances, the resources required for a Public Inquiry are not needed for a proper and fair determination of the issues ought to suffice. Otherwise, although a further Inquiry is the starting point for the mode of re-determination after an Inquiry, an Inquiry could be required when there was no good reason for one, with all its attendant public and private expense.[36]It was not contended that the decision on the mode of re-determination was irrational. Once it was reasonable for PINS to conclude that there is no advantage to be gained from the extra public and private expense of an Inquiry, in the circumstances of this case, I cannot see what is unlawful about it deciding that, all told, good enough reasons were provided for not doing what it normally would do, and concluding instead that further written representations and site visit was the better way to proceed.[37]Although the PINS’ decisions are not expressed within the right framework for the most part, the reasons given do provide a lawful basis for the undeniably rational decision not to hold a further Inquiry. Accordingly, I reject ground 1.

Ground 4: Inconsistency with the previous decision

[38]It is convenient here to deal with the previous decisions in 2016. Ms Dehon submitted that the PINS needed good reason to depart from the 2016 decisions. They had ignored them as material considerations. I cannot accept this. It is obvious that PINS knew that there had been two decisions to hold an Inquiry. Those previous decisions play their role in relation to the mode of re-determinations through Annexe L12.4. I have already dealt with the lawfulness of the way in which that was considered, when dealing with ground 1. In dealing with the decision on mode, PINS has addressed the criteria of complexity and substantial local interest to which its 2016 decisions expressly referred. Its decisions of January and February 2018 explain why those criteria now did not lead to the same decision. Ms Dehon contended that this ground concerned distinct errors of law from ground 1. To my mind, the issues are all part and parcel of the lawfulness of the way in which the Guidance and criteria were approached. I have rejected ground 1 and this ground raises no new issue.[39]I do not accept Ms Dehon’s submissions as to the absence of significant change in circumstances. PINS makes that point as relevant to the need for further evidence, which could require consideration at an Inquiry, to which the absence of significant change is plainly material. Ms Dehon submits that that also means that there is no basis for a change in the mode of determination. But that it is quite a different point from the absence of a change of circumstances requiring further evidence. There has been a significant, indeed crucial, change in circumstances relating to the decision as to the mode of determination: the holding of the previous Inquiry which has been through the pre-Inquiry stages, the gathering of evidence, the oral testing of that evidence, as to which written closing submissions were made or could have been supplemented by written submissions to the new Inspector, and all the written representations of the local bodies and individuals, which could be supplemented by their further representations commenting on what had transpired.

Ground 2: Failure to take the nature of the matters at issue into account

[40]Ms Dehon submitted that the Decisions notably [17] of the 14 February letter had wrongly characterised the issues as purely visual, which could not be adequately addressed by written evidence and a site visit: the degree of impact on landscape character, which was not a purely visual issue; the significance of the heritage assets, the extent of their settings and the degree of impact; and a significant dispute about the application of s66 Planning (Listed Buildings and Conservation Areas) Act 1990.[41]I do not accept her submissions. The Decision does not suggest that the issues themselves are purely visual. It decides that the disputes can be dealt with on written evidence, together with a site visit; and in effect that complex or otherwise, oral advocacy and questioning is not necessary to the identification and resolution to the issues, nor is further oral material from the many local people or bodies concerned. First, that was clearly a judgment falling within the expertise and function of PINS, and of the Inspector who was to decide the case, who had the previous Inquiry material to go on. Second, that material provided a different context for the judgment as to the mode of re-determination from the original decision that an Inquiry was necessary. Third, there was no evidence before PINS that oral advocacy at the previous Inquiry had led to significant evidential advances favouring those who sought a further Inquiry. Fourth, at the time of the PINS’ decisions, those parties would still have been able to provide their commentary on the oral evidence at the Inquiry as part of their further written representations, in so far as not already available in earlier written submissions to the previous Inspector.[42]Fifth, it was a wholly reasonable judgment that no further oral submissions were required to deal with the legal issues. Besides significant legal issues, which arise at an Inquiry, benefit from written submissions so that considered legal advice can be sought. Ground 3: Failure to take into account the increased risk of legal error from the written representations procedure.[43]Ms Dehon pointed out that at least one of the planning appellants was inviting the new Inspector to consider the previous, quashed, decisions and to focus on the errors leading to the quashing. PINS had ignored that risk. I cannot accept that submission. First, PINS and Mr Glenister have made it clear that the new decisions will be a fresh decision on all issues, and the previous decision will play no part in it. Second, if parties invite the Inspector to err in that respect, the Council is in a position to point it out, and it would be plain enough to the Inspector anyway, that those parts of the representations should be ignored. Third, that problem could arise with any mode of re-determination and is not a peculiarity of further written representations. The difference is only that the errors will require written rather than oral response, though, as I have said, the Inspector should be able to identify such points anyway. Fourth, although it is better to avoid error in the first place, there is remedy if an error is actually made.

Ground 5: Taking an immaterial consideration into account

[44]Ms Dehon submits that, for PINS and the new Inspector to have concluded that there was now greater clarity about the issues, they must have considered the decision of the previous Inspector, when it was a nullity, therefore did not in law exist, and so could not be read. If the new Inspector were to consider only “unchallenged evidence” from the previous Inquiry, there would be little evidence which he could consider because of the extent of the disputes. There had been no change of significance either, and therefore no basis for coming to a different decision on how the appeals should be determined from those taken in 2016.[45]The words “unchallenged evidence” appear in the Detailed Grounds of Resistance; they do not appear in the Decisions now at issue. Ms Dehon is correct to say that many aspects of the evidence are challenged. But what the Decisions are setting out is what is thought necessary for understanding and resolving those issues, rather than simply coming to a conclusion based on agreed or unchallenged evidence.[46]I accept that the new Inspector has read the previous decision; he did so in order to form his view that, based on it and the issues which led to the quashing of the decision, what remained for consideration could be dealt with in written representations and a site visit. I have already explained why I conclude that the Inspector is of the view that all the issues can now be dealt with in that way, and disregarding the previous decision in that way.[47]Ms Dehon’s submission is however, that the previous decision, having been quashed, could not even be considered for the purpose of informing the judgment as to whether the resolution of the issues afresh required an Inquiry or could now be dealt with through further written representations and a site visit. Mr Glenister submitted that there was nothing objectionable in considering the previous decision in that respect.[48]I do not consider that this issue requires a consideration of the jurisprudence on nullity, which extends very considerably beyond the handful of cases cited to me. The previous decision is a nullity in the sense that it has no legal effect. It is quite another step to say that it must be regarded as non-existent for all purposes, as blank sheets of paper, incapable of being read. The jurisprudence arises at dealing with legal consequences, rather than creating fictions: see Hoffman La Roche v SSTI [1975] AC 295 at 365A, and Boddington v British Transport Police [1999] 2 AC 143 at 155 – 8, notably 158E. I see no reason in law why the previous decision had to be ignored for the limited purpose of forming a view about the nature of the issues, bearing in mind its agreed and asserted failings. Besides, the Inspector has considered the matters on the proper basis.

Overall conclusion

[49]I have come to the conclusion that, despite Ms Dehon’s sustained advocacy, this application must be dismissed.