[2025] EWHC 2127 (Admin)

Fecha: 15-Ago-2025

Discussion – Ground 3

Discussion – Ground 3

90.

The Defendants’ submissions are to be preferred.

91.

In my judgment, it is highly significant that the EI Report on which the Claimant now places so much reliance was not even drawn to the Inspector’s attention. The general rule at an adversarial hearing of this nature is that “it is incumbent on the parties to a planning appeal to place before the inspector the material on which they rely”: see West v First Secretary of State [2005] EWHC 729 at [42]. The EI Report was not considered sufficiently material even to be included as a further document of relevance in the Statement of Common Ground before the hearing. As stated in DLA Delivery (at [34] citing from the first instance judgment in that case):

“Before the close of the "adversarial” part of the proceedings, the Secretary of State and his inspectors can normally rely, not unreasonably, on participants to draw attention to any relevant decision[, but] that does not mean that they are never required to make further inquiries about any matter, including about other . . . decisions that may be significant.”

92.

The Claimant’s contention that the Inspector ought to have inquired about the EI Report notwithstanding the parties’ failure to draw it to his attention cannot be accepted:

Authorities such as DLA Delivery go no further than to suggest that there may be circumstances in which the failure to make such inquiry would be unreasonable. However, it is important to bear in mind that the earlier decisions in such cases were previous appeal decisions dealing with similar issues and/or subject matter and where materiality may well be more obvious. In the present case, the earlier ‘decision’ is a report on a draft Local Plan dealing with a myriad of issues, only a tiny fraction of which (6 paragraphs out of 472 – 1.3%) could even arguably be said to be relevant to that which the Inspector had to consider. The Court of Appeal in DLA Delivery did not seek to prescribe or limit the circumstances in which a previous decision could be material, but commented (at [34]) that materiality may exist where the previous decision “relates to the same site, or to the same or similar form of development on another site …, or to the interpretation or application of a particular policy common to both cases”. None of these (admittedly non-exhaustive) examples applies here. Far from there being a ‘decision’ as such on a relevant issue, all that the EI did was to consider different evidential material to reach a view on the ‘soundness’ of the Council’s GTAA provision. That is not to say that a document such as the EI Report could never be so “obviously material” as to warrant consideration, but the different exercise of which it is a product reduces the likelihood of it being so in a particular case.

ii)

That last point leads to a further difficulty for the Claimant which is that, even if the EI Report could be said to fall into the category of a previous material decision as per the judgment in DLA Delivery, the context, purpose and evidential basis for that report is so far removed from that before the Inspector as to render it unarguable that he ought to have recognised its significance to the matter before him. As Mr Grant submitted, there was little to no overlap between the tasks being undertaken by the EI and the Inspector or as to material on which those tasks were based:

The EI was determining whether the plan was sound. In doing so, the EI would have had regard to whether the plan policies were consistent with national policy, but would also be considering whether the policy was “positively prepared”, “justified” and “effective”: NPPF 2024 at [36]. By contrast, the Inspector was concerned with the much narrower question of whether the development accords with policy concerning GTAA.

The material before the EI dated from 2021, whereas the Inspector had to consider the position as at the date of the hearing. The five-year periods under consideration differed albeit the Plan period encompassed both. The definition of ‘traveller’ in the material considered by the EI was not the same as that before the Inspector, although it appears that some adjustment was made by the Council to the figure for need in light of the updated definition;

iii)

The conclusions of the EI were not, in any event, ad idem with the case put to the Inspector by the Council. The EI considered that 32 pitches were deliverable over the next five years (from 2024) with another 2 per year from windfall. The Council told the Inspector that as of February 2025, it had a supply until 2029 of 36 pitches with a further 15 from windfall over the next 5 years: DL 35. Such inconsistency from the outset undermines any suggestion that the Inspector was bound to consider the EI Report. Why consider something that even the Council cannot identify as reflective of its position before the Inspector? Dr Bowes criticises the Inspector for rejecting the Claimant’s case as to supply from windfall and submits that this gave rise to an inconsistency with the conclusions of the EI that warranted explanation. However, this argument is wholly unsustainable in the face of the Claimant’s own inconsistent position vis-a-vis the EI Report.

iv)

In these circumstances, the recentness of the EI Report and Local Plan is to no avail.

93.

Mr Grant and Mr Whale make the further valid point that to require an Inspector of his or her own volition to go behind the presented material to identify potentially relevant content in earlier lengthy reports dealing with hundreds of other matters would be to impose on them a disproportionate and unnecessary burden. The position here is, as I have said, very different from that arising in cases where a previous appeal decision may be said to be material; and even then the Inspector would generally be entitled to rely on the parties to draw relevant decisions to their attention. In my judgment, there was no obligation on the Inspector, in the circumstances of the present case, to have regard to the EI Report and/or to explain any difference in conclusions. The contrary is unarguable and permission is refused.