3.1, The principal sources of the law in England and Wales are statute law and common law. The major part of common law is contained in the accumulated decisions of judges, often referred to as case law. An Inspector may be bound by it. It is therefore essential that he/she be aware of potentially relevant judgments. These are not always easy to interpret and their applicability may be difficult to assess. Planning Inspectorate guidance can sometimes assist (e.g. Rights of Way Advice Note No.6 –Sunningwell), but Inspectors may on occasion have to make their own assessments. The following general guidance may assist.

Judicial Precedence

3.2, Decisions of “courts of record” are binding on all inferior courts and tribunals. In terms of domestic law, the principal courts of record are the High Court, the Court of Appeal and the House of Lords. A higher court of record binds the decisions of a lower court of record. Decisions have immediate effect. They apply during any period in which an appeal could be lodged or, having been lodged, is pending.

3.3, An Inspector is bound to follow the decisions of all courts of record, but is not normally bound by decisions of the County or Magistrates’ Courts (‘stopping up’ decisions are obvious exceptions). Inspectors are not bound by another Inspector’s decisions. These are frequently quoted at inquiry but, upon inspection of the full text, often derive from a combination of somewhat different circumstances. Nonetheless, it is important that there should be consistency in decision making, and an Inspector should not differ in the findings and conclusions of a previous Inspector without good reason, which should be stated. Whilst not binding, decisions by courts other than those of record may be ‘persuasive’. The weight to be attached to them will depend on the circumstances.

3.4, A past decision of a court of record is binding on a present case (sometimes termed ‘instant’ case), only to the extent that the facts are comparable. If the facts in a present case are materially different, an Inspector may reach a different decision, but should explain why the apparent precedent has not been followed, i.e. distinguish the present case from the precedent decision. If there are extant two conflicting decisions of the High Court (both of which are, in principle, binding on inferior courts), an Inspector is entitled to choose which to follow. In such a situation, there may be helpful advice in legal textbooks or periodicals, or the dates of the judgments may have some significance.

Judicial Precedents etc

3.5, A judgment will usually follow a fairly standard sequence. The issues raised are first described and the relevant statute law is rehearsed. There then follows the judge’s reasoning. This may contain extensive quotations from judicial precedent and include personal opinion. The decision which follows will be binding in respect of the issue(s) addressed.

3.6, In some cases e.g. R v SSE ex parte Andrews 1993 (see ‘Inclosure Awards’), the point at issue may be widely applicable. The decision will therefore be binding in all cases where the issue arises. In other judgments, e.g. Dunlop v SSE and Cambridgeshire County Council 1995 (see Section 7 ‘Inclosure Awards’), the decision may be specific to a particular issue and is therefore binding only in relation to that. However, in the reasoning, a judge may offer opinions which appear to be more widely applicable. Such opinions can be influential beyond the confines of the actual decision if they are central to it. Other opinions expressed may be obiter dicta (incidental statements made in passing). Such opinions are not legally binding, but as they represent the view of a distinguished judge they should normally be followed. Judicial precedents quoted with approval in the judgment must, where relevant, be followed by an Inspector. As a general rule, the more senior the judge or court, the more persuasive the opinion.

3.7, A further consideration is that many judgments which had previously withstood the test of time have now been overtaken by, or absorbed in, more recent judgments. For example, R v Oxfordshire County Council ex parte Sunningwell Parish Council 1999 has rendered irrelevant a whole raft of case law covering the ‘belief’ element of ‘as of right’. Similarly Hollins v Oldham 1995 (C94/0206, unreported) has, in part, superseded several cases concerned with the interpretation of early commercial maps and the outcome of the ‘Masters’ appeal has clarified the confusion arising from the slightly earlier Nettlecombe^{Footnote 1}, Masters^{Footnote 2}and Buckland andCapel^{Footnote 3}judgments. If witnesses inadvertently seek to rely on somewhat dated judgments they should be invited to consider whether later judgments affect their case. Fortunately, overtaken or absorbed judgments are usually identified in the later judgments and the way and extent that they have influenced it are identified. The previously mentioned Sunningwell judgment is a particularly good example.

Relevance

3.8, Case law should be the subject of legal submission, not cross-examination. However, witnesses will sometimes introduce case law which does not read across to the case before the Inspector. On other occasions extracts may be quoted which are taken out of context and inappropriately used to suit a particular argument, or partial quotes used which disguise or distort the full meaning. Inspectors must be as much on their guard against such misuse of case law as they are ready to accord due weight to justified reliance. An Inspector should always try to obtain full copies of judgments from someone quoting case law, or at least a sufficient extract to see the quotation in context. Its production will also help informed cross-examination. The Inspector should consult the full judgment when determining the matter.

Availability of Full Judgments

3.9, Identification of relevant case law in these guidelines is achieved from three sources.

‘Leading Cases’ i.e. those cases considered to be most useful are identified in each topic-related section. These judgments are essential reading. Inspectors are provided with copies for retention.
Judicial precedents which are considered to be relevant to the point at issue are often found within ‘leading cases’.
There are a number of legal encyclopaedias, which offer a detailed oversight of the law with comprehensive references. Halsbury’s Laws of England strikes a good balance between readability and reference. Parties to Orders relying on such evidence would be expected to produce it at inquiry in sufficient detail.

Concluding Comment

3.10, Consistent interpretation and application of case law is essential. If an Inspector is aware of relevant case law which the parties show no sign of introducing, at the earliest opportunity and in a neutral manner, attention should be drawn to it. Obviously it will benefit all parties to know the judicial precedents the Inspector anticipates will need to take into consideration. In this context the ‘Halsbury habit,’ i.e. invariably refreshing one’s memory on what Halsbury has to say, will assist. Post- inquiry review of the full text of relevant judgments should ensure a thorough understanding of the law and its applicability to the matters before the Inspector.

R v Wiltshire County Council ex parte Nettlecombe [1998]
Masters v SSETR [2000]
Buckland and Capel v SSETR [2000]

How to view PDF documents

PDF files can be viewed using Adobe's Acrobat Reader. You can download Acrobat Reader free of charge from the Adobe website. Visit Access Adobe to find out how people with visual disabilities can get the most from this software.