QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Craig Pitblado
|- and -
| Secretary of State for Communities and Local Government
Dacorum Borough Council
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Lisa Busch (instructed by The Treasury Solicitor) for the Respondents
Hearing date: 9 November 2012
Crown Copyright ©
Mr Justice Lindblom:
(1) whether the Inspector, in determining the appellants' appeals, adopted a procedure manifestly unfair and prejudicial to them; and
(2) whether the Inspector failed to take into account as a material consideration the appellants' efforts to ascertain the planning status of their properties.
"Without planning permission:
1. The construction and erection of a new dwelling and creation of hard standing, on the land hatched in blue on the attached plan.
2. The construction and erection of a boundary wall, exceeding two metres in height, shown edged yellow on the attached plan.
3. [T]he material change in the use of the land from agricultural land to a residential garden, shown hatched in green on the attached plan".
The requirements of this notice were:
(i) Demolish the dwelling/hard standing and remove all materials used in their construction from the land.
(ii) Demolish the boundary wall and remove all materials used in their construction from the land.
(iii) Cease using the land (shown hatched in green) as a residential garden.
(iv) Cease mowing the land (shown hatched in green) as residential garden.
(v) Remove all residential items and paraphernalia from the land."
The time for compliance with the requirements of the notice was one year from the date when it took effect.
"Without planning permission:
1. The construction and erection of a new dwelling and creation of hard standing, on the land hatched in blue on the attached plan.
2. [T]he material change in the use of the land from agricultural land to a residential garden, shown hatched in green on the attached plan".
The requirements of this notice were:
(i) Demolish the dwelling/hard standing and remove all materials used in their construction from the land.
(ii) Cease using the land (shown hatched in green) as a residential garden.
(iii) Cease mowing the land (shown hatched in green) as a residential garden.
(iv) Remove all residential items and paraphernalia from the land."
As in the notice issued for Gable End, the time for compliance with the requirements of this notice was one year from the date when it took effect.
"6. The single-storey building from which the terrace has been formed dates back to the 1930s. An approval given by the then local Council in 1935 was for the "re-building of a laboratory building" and the plans for that approval formed part of the evidence before me. In the 1960s, it was converted to provide three flats. In the 1980s, in the flat corresponding to the dwelling now known as "Woodside", the roof space was converted to provide rooms at first floor level.
7. The notices follow unauthorised building operations of which the Council first became aware in 2007. Threefields and its attendant land and outbuildings were sold in lots in 2006. The building was described in the sales particulars as "the cottages". It was purchased, along with Threefields and other land and buildings, by Thorne Barton Estates Ltd ("TBE") . Lengthy correspondence between the Council and TBE ensued prior to the issue of the notices, which were served on the, by then, occupiers of the dwellings. The appeals are made in their name but have been submitted by a single agent who represented both them and TBE at the hearing. He confirmed at the hearing that the appellants do not contest the requirement to reinstate to agriculture the land used as rear gardens to the dwellings.".
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted ;
(f) that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed".
"The appeal was not conducted by way of a formal public inquiry and the less formal hearing procedure was chosen. Neither the Council nor the Appellants were represented by lawyers and I was the sole representative of the Appellants since no complicated legal or procedural issues appeared to be at issue between the parties. The procedure was chosen by the parties bearing in mind the issues which fell to be decided.".
"A final issue arose under "Ground (g)" of the notices of appeal, that if the notices were upheld, further time should reasonably be allowed for the steps required by the notices to take place; the demolition of the buildings. I argued that the period of one year provided in the notice was insufficient bearing in mind that 5 households would have to find alternative housing. The Appellants who were owners/occupiers were unaware that the properties in which they were acquiring interests did not have the benefit of planning permission. Each such Appellant had taken legal advice in the usual way in acquiring their interests and had solicitors to undertake the necessary searches and conveyancing. In order to acquire new properties in which to live, the owner/occupier appellants would need to seek redress for deficiencies in conveyancing procedures which had allowed them to acquire interests in houses which did not benefit from planning permission. This argument is set out in my appeal statement which was exchanged with the Council and delivered to the Inspector in advance in accordance with the hearing procedure rules."
"These relate to [nos.] 2, 3 and 4 Threefields. As previously stated it is common ground between the parties that these properties have existed as separate dwellings for many years. In the case of [no.] 3 this is confirmed by the results of the local search carried out by the purchasers solicitors in March 07 and enclosed in appendix 4." [my emphasis].
"5.1 The breaches of planning control the subject of the Notices were not perpetrated by the owners of nos. 1-4 Threefields who each have mortgages or the tenant of no. 5 Threefields who is the subject of an assured tenancy agreement which does not expire until May 2012.
5.2 They purchased or tenanted the properties in good faith with the assistance of their solicitors who if the enforcement appeals are dismissed will need to put their respective indemnity insurers on notice of the claims to be made by the purchasers and their mortgagees. Please note that negligence by a solicitor is only relevant once it causes a loss.
5.3 It is highly unlikely that one year will be sufficient time to conclude the ensuing litigation associated with determining where and with whom the financial culpability lies and the levels of compensation to be paid.
5.4 Until these payments are received by the families they may find it difficult to make alternative housing arrangements particularly if they are still making the monthly mortgage repayment and paying rent on another property.
5.5 There is also the levels of stress and anxiety to which they are being subjected to be taken into account.
5.6 It is therefore submitted that in this particular case for humanitarian reasons the time to comply with the Notices should be a minimum of 3 years in the case of nos. 1-4 Threefields and until May 15th 2012 in the case of no. 5 Threefields.
5.7 Alternatively and in respect of nos. 1-4 Threefields the time scale for compliance might be linked to the resolution of their respective claims.
5.8 Please note that details of the appellants' mortgages and the tenancy agreement will be available at the hearing if required.".
"10.1 The Council consider twelve months to be sufficient time to carry out the requirements of the enforcement notice. When determining the time period for compliance with the notice, consideration was given to the means of removal and demolition. Considering the size of the structure and means of construction it was considered that twelve months was sufficient time to demolish and remove all materials from site.
10.2 The appellant is of the opinion that three years are required for the requirements of the notice to be met because of potential litigation. The Council are of the opinion that three years is an excessive period of time and requests that the inspector does not vary the period of time in which to comply with the requirements of the notice.".
"In preparation for the hearing, procedural matters were agreed with the Council to facilitate the hearing. Mr Staincliffe at the Inquiry [sic] confirmed that it had been previously agreed that the attendance of the Appellants in person would serve no useful purpose and lead only to increased stress for the families concerned. Their attendance would also be likely to disrupt or lengthen the proceedings, for which only two days had been allocated. Their attendance might also compromise discussions on the planning merit of the appeals between the parties. As a result, the hearing was able to be held in a small meeting room. This confirmation was given when the Inspector commented on the absence of the Appellants.".
But that version of events is not accepted by the Council. In paragraph 13 of his witness statement Mr Staincliffe says that, when discussion at the hearing turned to the enforcement notices relating to the five dwellings,
" [the] Inspector said he was surprised that no owners were at the hearing considering what was at stake. Mr King explained that he did not think it was necessary for them to attend, but I can not recall what reasons he gave. However, I can confirm that there was no agreement between Mr King and myself that his clients should not attend (as stated in Paragraph 9 of the Witness Statement of Andrew King dated 21/12/10 [sic]).".
- Background position on occupiers' litigation.
- Relevance of litigation to period for compliance.".
b) I was also asked what knowledge I had of the planning history of the property that I was going to purchase. I told [the Inspector] that I had no real information. I confirmed that I was relying upon my solicitors to make all necessary investigations into the purchase. The position as I recall was that I was given a Contract by Thorne Barton, which I think had been prepared by Mr Turner, to sign, so that they were able to use this to satisfy the Bank that contracts were in place for further funding to complete the development. This was some time before the final completion, which was in 2007. I am not sure that I spoke to Mr Turner at this point. Subsequently, however, I recall speaking with Mr Turner when he was with Hilliers and asking him to ensure that all planning matters were correct and whether there was any reason why the transaction could not proceed. As can be seen from the bill, which is exhibited under 'CGP1', there is a charge made for a Local Authority Search. I was expecting Mr Turner, who I have known for a number of years and used on a number of occasions, to make the necessary investigations and to inform me if there was any difficulty. He did not do so, and I therefore proceeded to complete the purchase on the understanding that planning issues did not exist. I would also mention that I told the Inspector that I had bought a number of properties from Thorne Barton over a period of years. I first got to know Mr MacGregor a director of Thorn[e] Barton when I was running a café in Berkhamsted some 15 years ago, and indeed we bought our first property through him. Since that time we have probably bought properties through Thorne Barton some four or five times, on each occasion without any difficulty and I had therefore the utmost faith in him and in the company.".
In quoting that passage I have underlined the parts of it that I understand to be Mr Pitblado's summary of what he said to the Inspector.
"10. When the inspector asked about the relationship between the owners and tenants with the developer of the land, Thorne Barton Estates Limited, both Mr Staincliffe and I merely confirmed the personal business connections as agreed matters of fact.
11. Of the 5 occupiers of the houses each had some connection with the owner/developer TBE.
12. The Inspector asked if Mr Pitblado could attend because he seemed to find it difficult to understand why as a site manager for Thorn[e] Barton Estates Mr Pitblado was unaware of the lack of planning permission and building regulations approval. It was therefore arranged for him to be present at the site visit.
13. I do not recall any submissions made or arguments put on behalf of the Council, that owners or tenants of the buildings had acquired their interests from the developers in the knowledge that there was no planning permission. I would have been surprised if such allegations had been raised as this question had not been raised before between the parties and it would have been a somewhat startling suggestion. It was an issue which solely originated with the Inspector and I was surprised to see that he had made findings on the point in the Appeal Decision at paragraph .
14. Following the hearing at the Council's offices, I again met with the Inspector on site together with Mr Staincliffe and Mr Pitblado for the site visit. The Inspector spoke with Mr Pitblado. In addition to responding to some factual questions on internal layout, I recall Mr Pitblado informing the Inspector that whilst he had rented the neighbouring "Old House" from Thorn[e] Barton Estates during the course of the building works on the terrace he was never employed on this development but was busy site managing a different project elsewhere. Mr Pitblado then produced an invoice from the solicitors who acted for him in the purchase of his house, No.1, which showed he had been billed for a local authority search fee."
"9. The substance of the Applicants' joint case on this ground, as it was put to me by the agent who represented them, Mr King, was (and I paraphrase) that they were innocent home-owners caught up in a planning issue which was not of their own making and that the period for compliance with the requirements should be extended to allow them to pursue litigation against solicitors who had carried out the conveyancing process in connection with their purchase of the properties.
10. In the agenda for the hearing which I circulated before opening, I raised, under Item 6 (headed "Ground (g) appeal") two bullet points for discussion: (1) the position on the occupiers' litigation; (2) the relevance of the litigation to the period for compliance.
11. My notes of the discussion record that, under this heading, Mr Staincliffe of the [Council] raised a query as to whether those who occupied the dwellings had had some involvement in the unauthorised works. [The Council] also queried whether any of them worked for [Thorne] Barton, the developers who carried out the unauthorised works. It sought from Mr King details as to the circumstances of searches carried out. It wondered whether they were "family and/or friends" of the developers. It was suggested that Mr Pitblado had some involvement in the works.
12. By way of digression, Mr Pitblado did have detailed knowledge of the works carried out because his evidence at the two site visits which took place as to how the middle three dwellings had been constructed was key to the appellants' success on the ground (b) appeals and the quashing of the notices relating to them.
13. I asked the Applicants' representative, Mr King, what the position was regarding litigation. My notes record that he responded that "DT" (my shorthand) was acting for the purchasers against the solicitors who carried out the conveyancing that much was known. I cannot now recall who "DT" refers to but this may not be material. The Council went on to say that it sought information regarding search enquiries on the properties prior to its investigations in relation to enforcement action. It knew that solicitors for [Thorne] Barton also acted for Mr Pitblado. No searches were recorded under his name there was evidence of two other searches.
14. The Council expressed surprise that, although it highlighted to occupiers the possibility of enforcement action leading on from its investigations in correspondence with them, no queries in relation to this were raised by any of them. When all these matters were put to Mr King, he responded that he could only surmise that the conveyancing process might have been rushed it was the height of the boom in the property market at the time.
15. In the course of these discussions, the Council expressed surprise that none of the occupiers had attended the hearing. I expressed surprise also. This is at odds with the statement that Mr King had agreed their non-attendance in advance with Mr Staincliffe, for all that he might have explained to him how the arrangements had been agreed in advance with the occupiers. Mr King did say at the hearing, as I recall, that he had had the Applicants' agreement that he would represent them at the hearing, as well as the developers, but that is not the same as saying that an "agreement on procedure" with the [Council] was explained to me. The suggestion that the connection of the occupiers to the developers was made clear to me as background information is also at odds with what occurred. No mention of it was made in any statement in advance of the hearing it emerged as a result of discussions at the hearing which originated from concerns expressed by the [Council].".
The Inspector also rejects the contention that the "state of knowledge" of the appellants was not an issue between them and the Council:
"16. I do not accept the statement that the Council did not wish to question the occupiers about various matters. It was the Council who initially raised concerns about their connection with the developers in the discussion on this ground of appeal and I took from those expressions of concern that it had doubts as to what the occupiers might have known about the planning position. For these reasons, I do not accept the claim that the state of knowledge of the occupiers was not an issue between the [appellants] and the [Council].".
"17. In conducting the visit, I was, as is normal in such visits where they are carried out in connection with a hearing, able to leave the hearing open and hear evidence. Though Mr Pitblado was in attendance to help with the details as to the process of construction of the dwellings, at Mr King's instigation, he gave some evidence as to his own involvement as a purchaser of one of them.
18. My notes of the visit record that Mr Pitblado said that he did not project-manage the works but was aware of them, as he was living at the time in "Threefields", the main dwelling on the original estate. He said that he purchased Gable End through [Thorne] Barton in May 2007 and that the other properties were sold through "word of mouth". He went on to say that no check was made as to whether it had planning permission, that he left that to his solicitors and that he didn't check with [Thorne] Barton colleagues. I do not recall his producing a solicitors' invoice it is not a document that was formally put in at the hearing. It does not appear on the list of such documents at the end of the decision. If local authority search fees were itemised on it, this is at odds with the Council's evidence from the earlier discussion that no searches were entered under his name.".
"22. I do recall that I informed the Inspector that the whole situation was not as simple as made out by Mr King and went on to explain the facts recently established by the Council. These facts were:
1. The properties were not offered for sale on the open market.
2. The link established between most of the owners of the properties and the developer, Thorne Barton Estates.
3. The properties did not have building regulations approval.
23. The above points were confirmed by Mr King.
24. I expressed my surprise that all owners and occupiers, who faced the real danger of losing their homes, were using the same planning consultant as Thorne Barton Estates and chose not to attend the hearing. I directed the Inspector to the Planning Contravention Notices sent with the Appeal Questionnaire . I expressed my opinion that the above indicated that Thorne Barton Estates and Mr King had full knowledge of the Council's enforcement investigation. I also expressed my opinion that the owners and occupiers must have known that they did not have planning permission for the works taking place.
25. I mentioned that if this was my property I would have difficulty not holding Thorne Barton Estates partly responsible for the situation and would therefore want to be represented by someone with no affiliation to Thorne Barton Estates. Four of the current occupiers gave no evidence so it was not possible to get a response to this statement. However, I did push the point that [in] the absence of any evidence to say otherwise it was my opinion, on the balance of probabilities, the owners must have been aware or partly aware of the risk in purchasing or living in these properties. I also stated that it was a possibility that the other owners did not attend to avoid such questions.
26. I recall that the Inspector invited Mr King to make comment and provided him with an opportunity to respond to the points made by me. Paragraph 11 of [Mr King's witness statement of 2 December 2010] would appear to be an accurate account.".
As to the site visit on the following day Mr Staincliffe says this:
"31. As the merits of the case relating to ground (g) were discussed the previous day I don't recall the Inspector, Mr King or I asking Mr Pitblado any further questions regarding the merits of the planning appeal or his knowledge of no planning permission having been granted for the construction of the dwellings.
32. It is also prudent to mention that I do not recall Mr Pitblado providing a copy of an invoice to the Inspector. If a copy had been given to the Inspector a copy would also have been given to me and it would have been placed on file. It would also have been noted on the final page of the appeal decision.".
"I had not previously realised the significance of this. Whilst the Inspector, Mr King and the planning officers were gathered around my kitchen table considering plans, I searched through a drawer and found the invoice attached as exhibit CP-6. I passed the invoice to Mr King who appeared delighted to be able to confirm to the Inspector that such a search had in fact been carried out. Mr King drew the Inspector's attention to the invoice and I have no doubt that the Inspector saw it. The Inspector kept his head down and made notes, which I assumed were related to the production of the invoice. Because I had not intended to be present at the hearing and because I did not expect my knowledge of planning issues to be relevant, it had not occurred to me to make copies of the invoice. Since I only had the original in my possession, I retained the invoice but I did not consider this to be a problem because I thought that the Inspector had made his own notes. I am very surprised to read that the Inspector does not recall the invoice having been produced at all and that it is absent from the list of documents. I can only assume that this is because no copies were available. Given that no duplicates were available, it is understandable for Mr Staincliffe to state that he "does not recall [me] providing a copy of an invoice" since I was unable to do so. However, I would have ensured that copies were provided to the Inspector and Mr Staincliffe as a matter of urgency had I realised that the invoice would otherwise have been ignored.".
Mr Pitblado goes on to say that by the end of the site visit he was relieved because he believed he had "eliminated any suggestion that [he] was somehow responsible for the predicament [his] family found itself in" and that he "had demonstrated to the Inspector that [he] had taken all steps that a layperson could reasonably be expected to take in order to verify that [his] investment in the Property was sound".
" The Inspector appeared satisfied that Mr Pitblado should attend the Site visit, rather than the formal session. Once all attendees had arrived at Gable End, Mr Pitblado exposed the brickwork inside his kitchen during that session so that the Inspector and or the Council could satisfy themselves that the brickwork was original. It was during this Site visit that the Inspector asked Mr Pitblado about his involvement in the construction of the Site and his knowledge of the planning position prior to his purchase of Gable End. I find it curious that Mr Staincliffe should state (at paragraph 18 of his statement) that he and I were "provided with an opportunity to ask Mr Pitblado questions". This suggests a formal procedure was followed, which was not the case. Each attendee was able to speak freely throughout the hearing process, I was not aware of any defined point at which questions were invited.".
" Had I known that the ground (g) [appeal] was to be contested on the grounds of complicity (and had Mr Pitblado found the document prior to the hearing) it would have been formally submitted as evidence beforehand. However, I had already given evidence to the effect that Mr Pitblado had instructed conveyancing solicitors, who had apparently carried out local authority searches; this was set out at paragraph 3.1 of my appeal statement . I had not anticipated that the integrity of the Appellants would be called into question and so had obtained only cursory instructions relating to the conveyancing process they had pursued. From the enquiries made by the Inspector at the hearing, I had begun to suspect that the Inspector believed that Mr Pitblado bought Gable End in full knowledge of the lack of planning permission. I was therefore reassured when Mr Pitblado produced the invoice which (to my mind) proved that he did no such thing. My initial conclusion, upon noting that Mr Pitblado had indeed been charged for a local authority search, was that the search provider and/or the local authority itself had made a mistake. I placed the invoice in front of the Inspector and am sure that he saw it; I said words to the effect that "they [meaning Hilliers] charged him for the search". I formed the opinion that, when the Inspector did not ask questions about the invoice, he was satisfied as to Mr Pitblado's ignorance of the lack of planning prior to and during his purchase of Gable End. I believed that the Inspector had noted this point. Had I realised that this would be contested, I would have pressed the point at the time and would have arranged for copies of the invoice to be provided of the Inspector and the Council. Having re-read paragraph 13 of the Inspector's statement to this court, he refers to Mr Staincliffe's assertion that the Council had no record of a local authority search having been carried out in Mr Pitblado's name. Given this conflicting evidence, I am surprised that the Inspector did not wish to refer to the invoice in making his decision.".
Mr King goes on to say that he "cannot accept that the [Inspector's] agenda makes it clear that the integrity of the Appellants was in question". He says that if the Inspector had prepared his agenda with the intention of challenging the appellants as to the "authenticity" of their ground (g) appeals, "a full inquiry would have been a more appropriate mode of appeal". The alternative, he suggests, would have been that when the Inspector had been presented with Mr Pitblado's solicitor's invoice he "could have adjourned the hearing and reconvened as an inquiry which would have allowed Mr Pitblado to call witnesses to corroborate his ignorance [of] the planning situation". Mr King says the Inspector formed conclusions about the integrity of the appellants without "any formal cross-examination", which, he says, is "unsatisfactory".
The Inspector's decision letter
"37. The appellants argue that the dwellings were purchased or rented by people with no knowledge of the circumstances of their erection. However, in the course of the hearing, it became evident that none were purchased on the open market and that most occupiers had some form of connection to TBE, the developers. Of the occupiers of Gable End and Birch End [sic], one is employed by them and one is related to a director of the company. I cannot accept that they will not have known, or tried to establish, whether planning permission was sought or obtained. I consider it more likely on the balance of probabilities that they will have knowingly exposed themselves to the financial risks involved in occupying them without such a permission in place. I therefore attach little weight to the view that the compliance period should allow for litigation over their purchase or for tenancy agreements to run their course.
38. I therefore approach these appeals from the point of view of whether the period is too short bearing in mind the requirement to demolish the dwellings and (in the case of Gable End) the boundary wall and remove materials from the site. The one year period specified by the Council should provide ample time to carry out these works and I therefore find no basis on which to conclude that it should be extended. The ground (g) appeals therefore fail.".
"21. As to the claimed error of fact, in the sentence with which offence is taken, "not" should be taken as applying to both "have known" and "tried to establish". I say that I cannot accept that they will (a) not have known, or (b) not tried to establish, whether planning permission was sought or obtained. That is the only sensible way in which it can be read. Why would I say that I cannot accept that they would have tried to establish the planning position, when the basis for my attaching little weight to their ongoing litigation is that I consider that they ought to have had some inkling of it? The claim now made, that they in fact did try to establish the position, is not therefore at odds with what I say and no error of fact has occurred.".
Issue (1): unfair and prejudicial procedure?
" The danger is that the "more relaxed" atmosphere could lead not to a "full and fair" hearing but to a less than thorough examination of the issues. A relaxed hearing is not necessarily a fair hearing. The hearing must not become so relaxed that the rigorous examination essential to the determination of difficult questions may be diluted. The absence of an accusatorial procedure places an inquisitorial burden upon an inspector.".
In Francis Pill LJ referred to the decision of Keene J (as he then was) in Croydon London Borough Council v Secretary of State for the Environment  EWHC Admin 748, in which he said (at paragraph 43 of his judgment):
"I return to the submission about the need for the Inspector to have adopted an inquisitorial role. No one suggests that an Inspector is required to engage in a search for material not put before him. What [Dyason] establishes is that, when there is an informal hearing which, as a matter of procedure, normally excludes cross-examination, the Inspector has to play an enhanced role in order to resolve conflicts of evidence. In addition, such an Inspector must not arrive at a finding adverse to a party without having put the point to the party in question or his witness, and that is what happened in [Dyason].".
Pill LJ also referred to Ouseley J's observations in Castleford Homes Ltd v The Secretary of State  EWHC Admin 77 (at paragraph 63):
"It can be said that an appellant at an Inquiry should be alert to the potential rejection of its arguments by an Inspector; but that is not so easy to say fairly when the Council has not made clear its opposition to that particular argument and an Inspector does not seek to clarify the position."
and (at paragraph 65):
"Whilst an Inspector can reasonably expect parties at an Inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed ." .
"There was, in the inspector's approach in [Dyason], a failure which led to the decision of this court. There has been a failure in the present case but one, in my judgment, on the appellant's behalf. An inspector's duty to investigate does not extend to the length which it is submitted in this case it should. It does not relieve an appellant of the responsibility of preparing and setting out a case which can form the basis of the discussion at the meeting. It is not for an inspector always to root out a case which the appellant has singularly, with respect, failed to put; particularly where, as in this case, the appellant is represented by someone skilled in the field of planning.".
Keene LJ agreed. He added this (at paragraph 38):
" Had the appellant not been professionally represented at the hearing by a chartered town planner who was also a chartered architect, there would have been a stronger argument for a more interventionist role to have been played by the inspector at this informal hearing; but when an appellant is professionally represented, an inspector is normally entitled to expect that the appellant's case will be adequately put forward by that representative and will address at least those issues which have been identified beforehand by the pre-[inquiry] statements and such other documents as the planning authority's reasons for refusing permission. Such was the situation here. The planning authority's objection to a low level ventilation system had been clearly flagged up in advance of the hearing, and in those circumstances the inspector could properly proceed on the basis that if the appellant sought to establish that that objection was invalid, then evidence would be produced to that effect. That being so, I for my part am not persuaded that the procedure adopted here was unfair. ".
Issue (2): failure to take into account a material consideration?
" this is one of the exceptional and rare cases in which it is right to exercise the discretion not to remit the matter. The error of law does not relate to the merits or substance of the appeal. It relates simply to the time in which the remedial work should be done to Mr Botton's land so as to comply with the enforcement notice.
The local authority have now given an undertaking through their counsel that they will not seek to enforce the enforcement notice or prosecute Mr Botton until the next sowing season has passed, so that, in effect, Mr Botton has not merely one month to effect the necessary work, he has from now until the end of the spring sowing season of 1992. In those circumstances, it would, in my judgment, be wrong to prolong this matter further by sending it back before the Secretary of State so that a minor alteration could be made to his decision which has effectively been achieved by the formal undertaking given by the local planning authority through their counsel. ".
Roch J therefore exercised his discretion not to remit the case to the Secretary of State.