England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		8 May 2009

1. SIR THAYNE FORBES: This is an appeal brought under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act"), permission having been granted by Blair J on 8 May 2008. The challenge in this case is to the decision of an Inspector appointed by the first defendant ("the Secretary of State") given in a decision letter dated 31 January 2008 ("the DL").
2. The Inspector in this case was appointed to hear an appeal brought by the appellant, Mr Baker, against an enforcement notice served by the second defendants, the local authority ("the LPA"). The relevant enforcement notice alleged that Mr Baker had "without planning permission carried out building operations to form a stone-built two-storey building which looks like and appears to have been designed as a dwelling". The enforcement notice required Mr Baker to "demolish the unauthorised building and remove from the land all building materials and rubble arising from the demolition". The Inspector dismissed the appeal against the enforcement notice and also refused to grant planning permission on the deemed planning application that arises under ground (a) of section 174(2) of the 1990 Act.
3. On behalf of Mr Baker, Mr Fletcher has submitted that, in this particular case, the rules of natural justice have been infringed by the Inspector because the Inspector had carried out an unaccompanied site visit ("USV") instead of an accompanied site visit ("ASV"), as a result of which, Mr Baker's agent, Mr Brett, had been denied the opportunity to draw to the Inspector's attention various matters which it was suggested would have been material to the Inspector's determination of the appeal.
4. Further, it is alleged that because Mr Brett could not attend the site visit at the date and time arranged, the Inspector may have taken the view that this was discourteous and would therefore have been predisposed against Mr Baker in determining his appeal. This particular latter point can be disposed of very quickly. I am quite satisfied from all the material before me that there is simply no substance whatsoever in that suggestion. There is no evidence at all of any inappropriate or improper predisposition on the part of the Inspector and, as it seems to me, there is no proper basis upon which any such allegation could be brought or should have been brought in this case.
5. Accordingly, the essential thrust of this challenge to the Inspector's decision is therefore the allegation that the rules of natural justice were infringed in the manner suggested above. In other words, that there was, in this case, procedural unfairness for those reasons.
6. This particular challenge appears to be related only to the original section 174(2)(c) ground of appeal, namely whether there has been a breach of planning control. In my view, the challenge does not relate to the Inspector's conclusions on section 174(2)(a), the deemed planning application.
7. On behalf of the Secretary of State, Miss Patry-Hoskins submitted that there had been no procedural unfairness in this case, but also, in any event, even if there had been a procedural error of the sort alleged, this did not prejudice Mr Baker or materially affect the Inspector's decision.
8. As Mr Patry-Hoskins observed, the starting point in this case is that it is clear from all the documents issued prior to the decision letter itself that Mr Baker and Mr Brett did not take any point at all on the fact that the Inspector carried out a USV. In fact, they themselves appeared to suggest that a USV was appropriate, or at the very least acceptable.
9. I make those general observations because of the following factual matters. In the planning appeal form CB43, Mr Brett, acting on behalf of Mr Baker, has clearly ticked the box which asks for the matter to be dealt with by written representations, and also has ticked the box which gives the answer "no" to the question: "Is it essential for the Inspector to enter the site to check measurements or other relevant facts?" CB43 makes it clear that this answer will result in an unaccompanied site visit taking place.
10. Furthermore, although Mr Brett now says that this was an error on his part, there was no reason for anybody to suspect that such an error had been made because no reasons were given in the form CB43 to explain why it was essential for the Inspector to enter the site to check the measurements or other relevant factors. Form CB43 asks that question quite specifically, and the space provided below is entirely blank.
11. As it happens, an ASV was arranged in this case, but only because the LPA had requested one to be held. It is normal procedure for the Planning Inspectorate to arrange an ASV when one party asks for a site visit for whatever reason, and one is then arranged. The Secretary of State has a letter on file which indicates that Mr Brett was given written notice of the date and time of the site visit. It does appear, however, that this letter was not received by Mr Brett. The position, therefore, was that he was unaware of the date and time of the arranged site visit, and it is said that that amounts to a procedural error. Whether it is right to characterise it as such or not does not seem to me to matter. The fact is it was an error that had occurred, but not an error that was in any way the fault of the Secretary of State or the Planning Inspectorate.
12. In my view, what is important in this case is to have regard to what took place thereafter in the light of that error having occurred. It is clear that Mr Brett was contacted on the morning of the site visit. He accepts that that is so. He was telephoned by the planning officer who had attended for the anticipated ASV. Mr Brett was unable to attend at that time because he was engaged with another matter. However, he accepts that, in the course of the telephone conversation, he gave express consent on behalf of Mr Baker for a USV to take place. As Miss Patry-Hoskins points out, Mr Brett had the opportunity to disagree with any site visit going ahead. He could have asked for the site visit to be rescheduled. He could have asked the Inspector to delay for a while so that he could get there. But he did none of these things. He gave express consent to the site visit going ahead on an unattended basis.
13. Although Mr Brett now says that he had little choice in giving his consent, that he felt that he was "between a rock and a hard place", I find it difficult to accept that this was so. Mr Brett is not an inexperienced member of the public; he is an experienced planning consultant. He would not have agreed to a USV going ahead if he had considered that his client's interests would be prejudiced as a result. I simply cannot accept that the circumstances were such that, if he had any doubts about the propriety of a USV going ahead, he would not have taken appropriate steps to have the site visit either delayed or rescheduled. He did not, and that was a deliberate decision on his part.
14. There is no doubt that the site visit that then took place, following the Inspector having been informed of Mr Brett's agreement, was a USV. The planning officer waited in his car whilst the Inspector carried out the site visit. Despite the local planning authority's wish that it should be an ASV, the planning officer very properly realised that, in Mr Brett's absence, that would not be appropriate, and so he remained in his car.
15. Furthermore, Mr Brett wrote to the Planning Inspectorate after the event but before the decision letter was issued on 18 December 2007. So far as material, he said this:

"Having not received notification, I did not attend and the Case Officer, Mr Arnold kindly telephone[d] me to advise of the Inspector's attendance, but unfortunately by the time I could have returned to the office, collected my files and arrived on site, the Appeal Inspector would have concluded his inspection. I was concerned that any delay may have prejudiced my client's case, as could also my non-attendance, as it may have given the impression of a lack of respect for the appeal process and general discourtesy to the Planning Inspector.

I would be grateful if my concerns could be passed to the Inspector as no offence was intended by my non-attendance, but having not received formal notification, I was clearly not aware of the meeting. Bearing in mind that on one appeal I am conducting now it has taken nine months to fix the appointment of the Inspector, I did not anticipate this Enforcement Appeal being brought forward so quickly and could not have foreseen an early inspection date.

I understand that the Inspector continued with the appeal inspection unaccompanied, and I hope that he was able to gain access to the property in its entirety; and could see for himself through existing openings, the internal arrangements and use to which the premises had been put."

16. I agree with Miss Patry-Hoskins that, having regard to the contents of this letter and the matters to which I have earlier referred, it is clear that Mr Brett and Mr Baker took the view that an ASV was unnecessary for the proper determination of the appeal, and that the Inspector could perfectly properly carry out a USV in the circumstances of this case. It appears that that view of the matter only started to change once it became apparent that the appeal was unsuccessful. Even once the decision of the Inspector had been communicated to Mr Brett, Mr Brett appears to have remained of the view that a USV was sufficient -- at least initially. I refer to his letter dated 31 January 2008 in which he replied to the Inspectorate, having received the Inspector's decision letter. After the opening paragraphs of the letter, Mr Brett went on as follows:

"The Inspector indicates that he saw enough, without internal inspection, to determine the appeal. I do not take issue with that.

My issue is with the assumed lack of courtesy, which was never intended either by the writer or the appellant. It is recognised that as part of judicial process failure to turn up at a hearing is prejudicial to the case and I see no difference in applying the same logic to this scenario."

17. As it seems to me, it is apparent from the terms of his letter of 31 January 2008 that Mr Brett's concerns were not with the inability of the Inspector to see appropriate features of the development unaccompanied, rather he was concerned about any prejudicial effect to his client that may have resulted from the Inspector's adverse reaction to the apparent discourtesy of Mr Brett's non-attendance. I have already disposed of the suggestion that there was any inappropriate actual or apparent bias on the part of the Inspector arising out of his irritation at Mr Brett's non-attendance. As I indicated earlier, there is no evidence whatsoever that at any stage the Inspector was irritated or angered or in any way hostilely disposed to Mr Baker's appeal as a result of Mr Brett's non-attendance.
18. What is important about the letter of 31 January 2008, however, is that, putting on one side Mr Brett's concerns about the Inspector's reaction to his non-attendance, Mr Brett was not expressing any concern about the Inspector's claim that he had seen enough on the site visit, without any internal inspection of the building, to determine the appeal. The importance of that, in my judgment, cannot be overstated given the issues raised in this appeal.
19. Having regard to all these matters which I have been at pains to summarise as fully as appropriate, I am satisfied that there is no basis upon which it could properly have concluded that there was procedural unfairness on the part of the Inspector or of the appeal process in that the Inspector carry carried out a USV in the absence of Mr Baker or his agent, Mr Brett. To the extent that there had been an error in the postal system, which had meant that Mr Brett was not notified of the date and time of the Inspector's site visit, that error was plainly corrected by the steps that were taken to notify Mr Brett to invite him to attend on the site visit, and giving him the opportunity, if he thought it necessary, to have appropriate arrangements made by postponing the site visit for a greater or lesser extent to enable him to be present.
20. In the light of all those matters, as it seems to me, there is no proper basis upon which this court could conclude that there was any procedural unfairness in the decision-making process.
21. Accordingly, the main ground of challenge fails, and it would be sufficient for the disposal of this appeal for me to leave the matter on that basis. However, in the circumstances of this case, I have come to the conclusion that it is also important to consider whether, as a matter of substance, a reasonable person would consider that the failure in this case to have had an ASV might have given rise to the risk of prejudice to Mr Baker. Miss Patry-Hoskins submitted that the matters relied upon by Mr Fletcher on behalf of Mr Baker fall very short of establishing that that is the case. I entirely agree with that submission.
22. In my judgment, it is important to note that the key issue between the parties on section 174(2)(c) of the 1990 Act was whether the works which had taken place on the building were works of repair and refurbishment of the old barn, or whether, in effect, a new building had been constructed. A site visit was therefore, by definition, of somewhat limited assistance in determining that issue, because all the Inspector would see on site was the building as it now appeared, as opposed to what was there previously.
23. The evidence as to what works had been done, which was the crux of the issue between the parties, had been provided to the Inspector by way of written submissions and drawings, and would not be added to by way of any oral representations at a site visit. The latter observation, of course, is no more than a reflection of the clearly established principles that apply to site visits.
24. In the case of Taylor & Sons (Farms) v the Secretary of State for the Environment [2001] EWCA Civ 1254, the Court of Appeal discussed the purpose of site visits and noted that "... site visits are not there for the purpose of producing new submissions which might well be contentious". As Miss Patry-Hoskins observed, as everyone practising in the planning field appreciates, site visits are not an opportunity for making further and fresh representations or for the giving of evidence. In fact, it is clear from his decision letter that the Inspector was clearly able to see the whole structure without having access to the inside. At paragraph 3 of his decision letter he said this:

"The building was not entered, but the structure was open at either end allowing viewing of much of the internal structure, and other areas were visible through windows."

25. It is therefore not surprising that Mr Brett did not take issue with the Inspector's approach with regard to inspecting the building in his letter of 31 January 2008, to which I referred earlier. In any event, it is now clear that Mr Brett's main concern with regard to the possible prejudice to his client caused by his absence from the site visit was the possible failure on the part of the Inspector to see and observe the exposed stonework on the first floor of the east wall and the spine wall. This was something which Mr Brett was anxious to ensure the Inspector saw so that the Inspector could be satisfied that these walls had not been increased in height. It is perfectly clear that the Inspector dealt with this matter in a way which shows that he did not conclude that the walls had been increased in height in those areas.
26. In paragraph 6 of his decision letter, he said this:

" ... The ground floor is formed with a new concrete slab. The west elevation, which was originally formed with openings separated by piers, is now masonry with window and door openings and essentially a new wall. New timber panels have been formed in the end elevations and some new internal walls introduced. Window openings and door openings have been formed around the building. It seems to me that the main parts of the original structure that have been retained are the internal 'spine' wall, the wall forming the east elevation, and parts of the walls forming the north and south elevation, but these have been increased in height to allow for the raised roof pitch."

27. On any fair and natural reading of that paragraph, it is clear that the Inspector concluded that the east and spine walls were parts of the original structure, but the walls forming the north and south elevation had been increased in height to allow for the raised roof pitch. That conclusion is not surprising because, in the case of the north and south elevations, gable ends had had to be constructed in order to accommodate the ridge of the new pitched roof.
28. In my view, it is perfectly apparent that the Inspector had not formed any view that the spine wall and the east wall had been increased in height, and that therefore, if he did not observe the exposed parts of the wall that had been made available on the first floor internally, that failure, if it occurred, would not in any way have prejudiced his determination of the appeal. Essentially, his conclusion in relation to those two walls was that they were part of the original building that still remained.
29. Accordingly, I have come to a firm conclusion that there was no prejudice to Mr Baker occasioned by Mr Brett's absence from the site visit. Accordingly, even if it had been right to conclude that there was some procedural unfairness in this case of the sort alleged by Mr Fletcher on behalf of Mr Baker, I am entirely satisfied that no prejudice was occasioned by reason of that procedural error, and accordingly there is no appropriate basis for interfering with the Inspector's decision.
30. For all those reasons, therefore, I have come to the firm conclusion that this appeal must be and is hereby dismissed.
31. MISS PATRY-HOSKINS:: My Lord, thank you very much. I do have an application for the appellant to pay the respondent's costs. I have a schedule of costs.
32. SIR THAYNE FORBES: I have seen a schedule of costs.
33. MISS PATRY-HOSKINS: As I understand it, the principle is not disputed and the figure is agreed.
34. MR FLETCHER: That is correct.
35. SIR THAYNE FORBES: Mr Fletcher, you have seen the schedule of costs?
36. MR FLETCHER: I have seen the schedule, my Lord. We do not take any point on it.
37. SIR THAYNE FORBES: I understand you do not object in principle to a summary assessment?
38. MR FLETCHER: No, I do not.
39. SIR THAYNE FORBES: I suppose I jumped one hurdle. I understand you do not disagree in principle with the application for costs?
40. MR FLETCHER: I cannot, my Lord, and I do not dispute the figure. I have indicated that my client required 28 days to pay.
41. SIR THAYNE FORBES: Have you any submissions to make about the schedule?
42. MR FLETCHER: I do not, my Lord, no.
43. SIR THAYNE FORBES: In that case, having looked at the schedule, I am satisfied that the amounts claimed are reasonable. Accordingly, I make the following order with regard to costs: the appellant is to pay the first respondent's costs of this appeal, which I summarily assess in the sum of £5,418. Is that including VAT?
44. MISS PATRY-HOSKINS: I am told it does not include VAT because we do not claim VAT. So it is exclusive of VAT, but no VAT will be claimed.
45. SIR THAYNE FORBES: So the figure is £5,418?
46. MISS PATRY-HOSKINS: Yes, it is.
47. SIR THAYNE FORBES: Which I summarily assess in the sum of £5,418.
48. MISS PATRY-HOSKINS: Thank you very much.
49. SIR THAYNE FORBES: Thank you both very much.