Town and Country Planning Act 1971 — Application to quash inspector’s decision on an appeal against refusal of planning authority to grant planning permission — Criticisms of inspector’s decision letter and allegation that inspector’s conduct of the hearing was in breach of the rules of natural justice — Planning application was to convert an existing shop and a contiguous insurance broker’s office into a branch of a building society — Object was to use part of the frontage as a doorway leading to upper premises and the remainder as the frontage of the new building society branch — Judge rejected criticisms of the decision letter, such as alleged failure by inspector to make it clear whether he was dealing with a conversion or a change of use, alleged introduction of a new issue of fact and alleged failure to deal specifically with ‘other matters raised at the inquiry’ — Complaint as to alleged breach of rules of natural justice, however, gave rise to concern — Evidence, including affidavits by a chartered surveyor witness and by an employee of the building society, indicated that an impression was created by the inspector of a degree of hostility to the society and of refusal to pay attention to the evidence — Held that this was one of the exceptional cases where the court was satisfied that the evidence established the necessary degree of impropriety to justify the court’s intervention — Inspector’s decision quashed
This was an
application by the Halifax Building Society to quash the decision of an
inspector appointed by the Secretary of State for the Environment to determine
an appeal by the society against the refusal of the London Borough of Enfield
to grant planning permission for the establishment of a branch of the society
at Green Lanes, Palmers Green, London N13.
A Vandermeer
QC and M Harrison QC (instructed by Allen & Overy, agents for A C Jowett,
Halifax Building Society) appeared on behalf of the applicants; Simon Brown
(instructed by the Treasury Solicitor) represented the first respondent, the
Secretary of State; the second respondent, the London Borough of Enfield, was
not represented and took no part in the proceedings.
Giving
judgment, WOOLF J said: This is an application by the Halifax Building Society
in respect of a decision given by an inspector appointed by the Secretary of
State for the Environment on the determination of an appeal from the local
planning authority’s refusal of planning permission to the building society.
The decision was notified by letter, dated August 17 1982.
The
application is made on a number of grounds, but they can be divided into two
categories. First of all, there are what perhaps can be described as
conventional criticisms of the decision letter itself. Then, there is an
allegation of a breach of the rules of natural justice, based on a submission
that the attitude and conduct of the inspector during the inquiry was such that
the applicants were not given, and were not seen to be given, a fair hearing,
contrary to the rules of natural justice.
In order to
understand the grounds of the application, it is necessary to say something
shortly about the facts. The appeal to the inspector was in relation to an
application by the society for planning permission — and here I read from the
original application made by the society — ‘to convert an existing shop and
insurance broker’s office into a service branch for the Halifax Building
Society’. The existing shop and the office were at 256-258 Green Lanes, Palmers
Green; the shop, which was the smaller of the two premises, was no 258, and the
broker’s office was no 256. As an indication of the respective sizes, the
former offices were 1,160 sq ft and the former shop was 390 sq ft. Above those
premises there were offices and the proposal involved leaving part of the
frontage, of just under 30 ft, as a doorway opening to the upper part of the
premises, with the remainder of the frontage, amounting to some 25 ft, to be
the frontage of the new building society premises.
Before the
inspector, it was fundamental to the case put by the society that no 256
already had an office usage and, therefore, the only change of use involved in
the proposal was the change of use in respect of no 258, namely, the small
shop. However, although that is how the matter was presented by the society,
and indeed on the evidence before me that is the manner in which the planning
authority were prepared to approach the matter, it was reasonable — I would say
more than reasonable — to regard the application as being much more significant
than that in planning terms. What was involved in an area which was a shopping
area was the creation of combined premises which were to be used for non-retail
purposes.
The inspector
refused to allow the appeal. In doing so, he said it was his opinion that
the appeal
premises are located in a particularly sensitive and prominent position on the
eastern arm of The Triangle where they are in full view from persons proceeding
eastwards along Aldermans Hill. The south-western arm of The Triangle is
already predominantly occupied by non-retail uses and I find no reason to
question the inclusion of the parade of shops in which the appeal premises are
located as a core retail frontage to preserve a sound level of shopping
provision. It seems to me the shops at 238-286 Green Lanes have the particular
advantages of rear service access and proximity to the only public car park
available to shoppers.
I accept that
the proposed development would not increase the number of units in non-retail
use in the core shopping frontage and would only marginally increase the amount
of non-retail frontage therein. On the other hand it would involve the loss of
2 units which could be used as small shops. Whilst the ladies’ wear shop at 258
Green Lanes is cramped, it seemed to me it was adequate for a small shop. In
this connection I have taken into account the guidelines in Circular 22/80 on
the encouragement to be given to smallscale businesses. In my opinion the
appeal premises are more suitable for shop use than office use having been specifically
built for shop use with the benefit of a rear yard and rear access.
That is only
part of the decision letter. It is right to say that, in general, I find the
decision letter to be one which is clear, well reasoned and of a high standard
when compared with other decision letters given by inspectors, which this court
sees regularly.
What is said
in relation to this decision letter is that, first of all, the inspector failed
to make clear whether he was dealing with the application as one for conversion
of the appeal premises or as a change of use application. Reading the letter as
a whole, I find no substance in that criticism. Then, the point is taken that
the inspector did not make it clear that only one retail unit would be lost as
a result of the application, or, putting it another way, he did not make it
clear whether he was dealing with it on that basis. This particular criticism
is put in a number of ways in the grounds set forth in support of the notice of
application. I will try to deal with these various grounds shortly, in a
combined form.
The criticism
arises because of the sentence which I have already read, where the inspector
said: ‘On the other hand it would involve the loss of two units which could be
used as small shops.’ Mr Vandermeer
focuses his attention on that sentence and submits that it indicates that there
could have been confusion in the inspector’s mind as to the true position, or,
at least, it indicates a defect in reasoning on the part of the inspector.
I do not
agree. I should point out that in another part of the decision letter, which I
have not read out, the inspector records that it was the submission on behalf
of the appellant that the change of use only related to no 258. The inspector
also, immediately before referring to the loss of two units, stated that ‘the
proposed development would not increase the number of units in non-retail use’.
So the inspector had well in mind that what was involved here was the
conversion of two units into one unit and that because there was going to be a
conversion as such, the number of units in non-retail use would remain the
same. The sentence of which criticism is made says no more than the fact that
the conversion would involve the loss of two units which, as a matter of fact,
could be used as small shops. It is not saying that they would be used
as small shops; it is only stating the obvious, that they could be used
as two small shops. Therefore, the various ways in which the complaint is made
in relation to that part of the decision letter I find without substance.
It is
furthermore alleged that the inspector took into account a new issue of fact,
namely, the ‘particularly sensitive and prominent position’ of the appeal
premises. Having regard to the nature of the appeal, I can find no basis upon
which it can be reasonably said that that was a new issue, as that term is used
in the notice of application. The location of the shops was fundamental to the
appeal and the judgment of the inspector about that location was something on which
he must express an opinion and, in doing so, he was not dealing with any new
issue.
Finally, it is
said that the reasoning in general was inadequate, and attention is drawn to
the way that the inspector concluded his decision letter by saying that he had
‘taken into account all other matters raised at the inquiry’. It is said that a
statement of that sort is inadequate to deal with the matters that he had not
otherwise dealt with. As a specific example of this, attention is drawn to the
fact that he said that he gave full weight to a non-statutory plan, which had
been prepared by independent consultants, without indicating whether or not he
accepted or rejected the contention of the applicants that the policies set out
in that plan were inappropriate in so far as they related to the issues on the
appeal before the inspector.
It is quite
right that the inspector did not deal with that matter specifically. But, as Mr
Vandermeer readily accepted, inspectors in a decision letter of this sort
cannot be criticised if they do not deal with every single issue. If this
criticism stood by itself, I certainly would not regard the application as
having any substance. Even with the other criticisms which are made about the
decision letter, I am not caused to depart from the general views which I
indicated at the outset of this judgment about this particular decision letter.
I turn to the
second main category of complaint; the alleged breach of the rules of natural
justice. This is a matter which gives rise to concern. It gives rise to concern
from the point of view of the inspector and the Secretary of State, whom he
represented in giving a decision on this appeal.
As Mr Brown
rightly submitted, allegations of the sort that are made here, which I will
come to in a moment, can very easily be made but are very difficult to refute.
Equally, Mr Brown properly submitted that an inspector is entitled to have his
conduct considered by the court in the same way as a judge’s conduct would be
considered if criticism of this nature were made. Indeed, Mr Brown, with
justification, submitted that, in some ways, the position, in relation to
criticisms of this nature, of the inspector is less vulnerable than that of a
judge because the inspector’s role, at least in part, is
inspector, should not be criticised if he makes clear his view of issues which
are advanced. He is not to be criticised if he manifests a lack of enthusiasm
for submissions or evidence advanced before him. Indeed, it is often desirable
that litigants or appellants should know the provisional views of a tribunal,
be it a judge or any other type of tribunal, so that they can address their
arguments and evidence to the matters on which the tribunal has reservations.
I accept all
the points of that nature made by Mr Brown, so long as they do not impinge upon
the general principle that a litigant before a court, or a party conducting an
appeal before an inspector, is entitled to have a fair crack of the whip and is
also entitled to a hearing at which justice not only is done but appears to be
done.
What is said
in this case on behalf of the applicants, the Halifax Building Society, is that
the conduct of the inspector at the hearing which he held was such that he gave
to the applicants the feeling that justice was not being done; that he was
hostile towards them to such an extent that the applicants, their witnesses and
their representatives obtained the impression that he was not prepared to
listen to their evidence or fairly consider the case they were putting forward.
If this was the impression which the applicants received, that would also be a
matter of concern. It is quite proper, and indeed perhaps may be inevitable, in
this sort of appeal, involving as it did very much a matter for the personal
judgment for the inspector, that the inspector may start off with preconceived
views of the merits. However, although he cannot be criticised on that ground,
he can be criticised if he does not give those appearing before him a proper
opportunity to advance their case, does not listen to that case and is not
prepared, if appropriate, to change his provisional view.
Mr Vandermeer
appeared before the inspector. He indicated, and of course I accept this, that
the allegations which are made under this ground were only put forward after
the most careful consideration as to the propriety of doing so. In putting
forward his submissions before this court, which he did with moderation, he
made it clear that having regard to the fact that the inspector has filed an
affidavit, indicating that he was in no way biased against the society and that
he did not feel that he adopted a hostile attitude, he was not suggesting that
the inspector was in fact biased or was hostile. I should make it absolutely
clear that I accept fully evidence of the inspector to that effect. However, Mr
Vandermeer submits that, whereas he accepts that to be the position, that does
not mean that the inspector did not give the impression of being hostile and
did not give the impression of being biased. Whether the matter is approached
on the basis that there is a reasonable suspicion of bias, or a reasonable
likelihood of bias, Mr Vandermeer submits that the evidence in this case should
lead the court to the conclusion that that was in fact the impression that was
given.
In support of
the application, there is an affidavit sworn by Mr Bayliss. He is a Fellow of
the Royal Institution of Chartered Surveyors and a partner in the firm of
Gerald Eve & Co. He has been a surveyor for upwards of 22 years and has
given evidence in many inquiries. In dealing with the matter in general, he
says:
The inspector
gave me the impression that he was seeking to find fault with our case whilst
on the other hand he appeared to be protective towards the council’s witness.
During the many years that I have given evidence at planning inquiries I have
never experienced such behaviour by an inspector. I left the inquiry with a
clear impression that his mind had been made up irrespective of the evidence
given. I just felt that he was against us and for the council, irrespective of
the evidence given. This was a feeling that developed during the inquiry
starting with his behaviour as specified,
and then he
mentions another affidavit which has been filed:
It was no
surprise to me when I received a copy of his decision dismissing the appeal for
reasons which seem to me not to be consistent with the evidence.
As Mr
Vandermeer submitted, when a case of this general nature is being put before
the court, it is very difficult to pick upon specific incidents, so as to
create the true impression which was given to those appearing at the hearing.
Analysing each specific incident, it is often possible to find a legitimate
explanation for a particular comment which was made by this inspector at a
particular point of time.
In this
connection, I have very much in mind the fact that the other deponent refers to
the fact that the inspector was not prepared to adopt the approach which Mr
Vandermeer was seeking to advance before the inquiry, and indeed the approach
which the planning authority was prepared to accept, namely, that all that was
involved here was the change of use of one of the two units. With regard to
that, it is said that the inspector seemed wholly antipathetic to the
submission, indicating that he was not prepared to consider the application in
that light, nor consider the application as if it was amended, if that were the
appropriate course. In fact, the inspector neither gave a ruling nor allowed
the matter to be properly argued before him.
What concerns
me more is that a deponent, who is a legal executive employed by the Halifax
Building Society, Mr Darfield, says that he got the impression that ‘the
inspector seemed wholly disinterested in the evidence’. There is also reference
to the fact that the inspector took up a number of small points on Mr Bayliss’
proof, which he pursued with him in the form of a hostile cross-examination.
That again, by itself, is something which could be relatively easily
understood.
Reference is
made by the same deponent to the fact that when Mr Vandermeer put a question to
the authority’s witness that: ‘If there were to be shop premises turned into
building society offices in the shopping area, there were no premises the
change of which would do less harm’ and the witness agreed, the inspector
intervened and said that he failed to see the relevance of that question. By
itself, again, not very much.
Perhaps the
most significant indication of the attitude relied upon by the applicants is
the fact that the inspector referred to a difference in the frontage
measurements given in paragraph 4.5 of Mr Bayliss’ proof and the actual
frontage, which is explained by the access to the upper floor, to which I have
already referred. With regard to that, he said that Mr Bayliss was not telling
the truth. To suggest to Mr Bayliss, on a matter of that nature, that he was
not telling the truth is really somewhat surprising. It perhaps does very
clearly give an indication of the hostility to which Mr Bayliss referred in
general terms. There is no possible basis, on the difference in frontage
measurements, for making any criticism of Mr Bayliss. The explanation may be
that in fact the inspector, as has been suggested, was not listening to the
evidence with the care that he should. I know not. Certainly, the inspector
does not dispute in his affidavit that he made that suggestion to Mr Bayliss.
However, it
seems to me that it is much more important not to condescend to detail, but for
this court to look at the material as a whole. Looking at the material as a
whole, I come firmly to the conclusion that there was at least a degree of
hostility and a degree of refusal to pay attention to the evidence manifested
by the inspector, so that it gave the impression to reasonable people attending
the inquiry that justice was not being done. If reasonable people could take
the view that they were not being given a fair crack of the whip, and that view
was reasonably taken in this case, it seems to me that that is the sort of
situation where this court must intervene.
I fully accept
that the approach in a case of the sort with which I am now dealing may not be
the same as the approach adopted by the courts in those cases where a person is
disqualified on the ground of bias. Before a court will intervene in a case of
this nature, it must be satisfied, on the evidence, that there has been a real
impression created that the tribunal is not prepared to listen to their
evidence. It will be rare, because of the right of the tribunal to form
preliminary views about issues, that the necessary degree of unwillingness to
consider the issues will be established. However, I take the view looking at
the evidence as a whole here, that this is one of those exceptional cases where
I am satisfied that the evidence establishes the necessary degree of
impropriety to justify the court intervening.
Accordingly,
on the second main ground of attack in this case, I consider the decision of
the inspector, on behalf of the Secretary of State, should be quashed.
The
application to quash the decision was granted, with costs.
