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What are the powers of the Planning Inspectorate?

James-MauriciAndrew-ParkinsonThere is an interesting article by James Maurici QC and Andrew Parkinson, both of Landmark Chambers, in the latest edition of the Environmental Law Review.  It concerns the need for appropriate assessment under the Habitats Directive, which must be undertaken by each competent authority if there is a likelihood of significant adverse effects on any European Site (I summarise and truncate for brevity).  The Chief Executive of the Planning Inspectorate had written to an objector to say that the Inspector would consider if the effect of the proposal would be to have a significant adverse effect on a nearby SAC and if so would undertake the necessary appropriate assessment.  Before then, the Environment Agency, also a competent authority and from whom a permit was also needed, had ruled that in its view the proposal would not have a significant effect.  It granted its permit after the close of the inquiry and before the Inspector’s report.  The Inspector did not carry out an appropriate assessment and relied on the fact that the EA had granted a permit as indicating that appropriate assessment was not necessary.  The objector, Cornwall Waste Forum, challenged that decision claiming a legitimate expectation that the Secretary of State, as the other competent authority, would determine the likelihood of significant effects.

One of the reasons the Court of Appeal rejected the claim was that the Planning Inspectorate has no power to bind the Secretary of State.  This is of course quite right.  This case had not been delegated to the Inspector to decide and so it was for the Secretary of State to proceed as he thought fit, free from any assurances given by the Planning Inspectorate.  As Maurici and Parkinson comment “Carnwath LJ’s finding that the Planning Inspectorate and the Inspector had no authority to bind the Secretary of State’s application of regulation 65 means that pre-inquiry correspondence (whic is likely to be through the Planning Inspectorate) in unlikely to found a legitimate expectation against the Secretary of State in the future.”  But this also operates as between the Inspectorate and the Inspector.  Maurici and Parkinson say that inconsistency of approach between Inspectorate and SofS/Inspector may give rise to a natural justice or procedural impropriety claim in future.  But this is a long (and not entirely reliable) way round to enforce what is in effect a procedural ruling by the Planning Inspectorate.

The Inspectorate needs to have a way of making procedural rulings before an Inquiry, but currently I know of no power to do so. It has duty inspectors available who make such rulings already, but it has always seemed to me that their decisions are liable to be overturned by the Inspector deciding the case.  Has the time not come to put the pre-inquiry (or pre-hearing, or pre-written reps decision) rulings on a proper legal basis?  Especially when the Inspectorate is under some cost and time pressure.

If you would like to read the article it is at [2013] Env L Rev 152. (And yes those are the authors above, in alphabetical order.)

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