The inspector and the expert

Two recent judgments have looked again at the duty to give reasons in cases turning on expert evidence. Gordon Nardell QC and Justine Thornton look at the outcome.

Inspectors are often experts in their own right. So they do not always find it easy to articulate why they agree or disagree with an expert called by a party. The importance of providing a proper explanation for treatment of expert evidence has been emphasised in two recent cases: Georgiou v. Secretary of State for Communities and Local Government [2011] EWCA Civ 775 and RWE Npower Ltd v. The Welsh Ministers [2011] EWHC 1778 (Admin).

As well as reasons, the cases also dealt with interesting questions of procedural fairness. In Georgiou, 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 folding doors at the front of the premises to be fixed shut during operation. The appellant’s acoustic expert reported 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 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 an inspector should volunteer a modification to a planning condition even though not expressly asked to, 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 court 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 lack of explanation left the appellant “materially in the dark” about the prospects of obtaining an alternative permission.

The following day, in RWE Npower Beatson J quashed the Welsh Ministers’ refusal of planning permission for a 19-turbine wind farm at Mynydd-y-Gwair near Swansea. The Minister accepted the inspector’s recommendation to refuse on the basis of impact on peat bog habitat. In particular, one turbine and its associated access tracks were located on deep peat deposits. The Countryside Council for Wales objected 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 – including a “floating roadway” design for access tracks – would be minor. Neither witness’s views were challenged on cross-examination or on questioning from the inspector. But the inspector concluded 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 identify in what respect he disagreed with the two experts’ conclusions.

Beatson J cited the observations 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 distinguished the recent Court of Appeal decision in Tegni Cymru Cyf v. Welsh Ministers. In that case — which was also about wind farm development — the inspector accepted the views of the appellant’s acoustic expert but refused permission on the basis of other evidence about noise impacts. The court found the reasons adequate. In RWE Npower, by contrast, the expert evidence was crucial to the inspector’s conclusions. Beatson J also indicated that in the circumstances, the inspector should have aired his doubts so as to give the appellant a fair opportunity to deal with them.

The Welsh Ministers have received permission to appeal. So, in the wake of its opposite decisions in Tegni and Georgiou, the Court of Appeal will have an opportunity to look again at the scope and intensity of the duty to give reasons in cases turning on expert evidence.

Gordon Nardell QC appeared for the claimant in RWE Npower, while Justine Thornton appeared for the Secretary of State in Georgiou. Both are barristers at 39 Essex Street.