Planning appeal — Procedure — Claimant participating in planning appeal as concerned local resident — Inspector making amendments following hearing to proposed planning conditions — Inspector inviting comments on conditions from all parties except claimant — Whether breach of natural justice — Whether material error in wording of permission — Claim allowed
The claimant occupied a mews house in London W1, and was the chairman of the local residents’ association. In May 2000, the second defendant, AH, applied for planning permission to develop another property in the mews, along with the larger property that it had once served, into an auditorium, incorporating an art gallery, café, meeting and dining rooms, offices, and a residential flat with garage. The local council, as planning authority, refused permission, and the matter went before an inspector on appeal.
The claimant participated at the hearing, in opposition to the development. In the course of the hearing, the council suggested conditions that might be attached to any planning permission. The claimant expressed concern that those conditions were over-complex and difficult to enforce. After the hearing, the inspector wrote to AH and the council, setting out different, simplified, conditions that he was minded to attach, and inviting further comments. The inspector made small amendments to his proposed conditions in response to those comments. The claimant and the other local residents remained unaware of this post-hearing process until they received the inspector’s decision letter, in which he granted permission, subject to the new conditions.
The inspector considered that the appeal could properly be allowed only if strict and effective conditions were imposed, which would regulate the operation of the premises and thereby limit any adverse effect that the development would have upon residential amenity
The claimant challenged that decision under section 288 of the Town and Country Planning Act 1990 on the grounds that: (i) the failure to involve the claimant in the post-hearing process had breached the rules of natural justice and his rights under Article 6(2) of the European Convention on Human Rights; and (ii) there was a material error in the decision letter, since it referred to planning permission for a “cultural mews”, whereas the conditions were said to apply to a “cultural institution”.
Held: The claim was allowed.
1. The domestic requirements that an inspector determine appeals fairly and in accordance with the rules of natural justice were sufficient to protect the claimant on the facts of the case: Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 EGLR 18 applied. The requirement that justice had not only to be done, but must be seen to be done, was of particular relevance. What fairness required in each case would depend upon the particular facts, and could cover a broad spectrum. In the present case, it had been unfair not to invite comments from the claimant. Relevant factors were that: (i) although, in many cases, conditions were often dealt with as a “tailpiece”, after the main issues had been resolved, in the instant case they had been the central issue; (ii) although the claimant had not been entitled to appear at the hearing as of right, the issues raised there were of immediate concern to residents; and (iii) the claimant had participated in the discussion over conditions and had influenced the inspector on that issue.
While it was possible that the inspector could have gone away and imposed revised conditions without consulting anyone, he should, once he had chosen to invite comments from two of the participants in the original discussions, also have included the claimant. Although he was inviting only limited responses confined to drafting and “fine-tuning”, the fact remained that both the council and AH had succeeded in persuading him to amend his proposals, and the claimant should have shared in that opportunity. The inspector’s decision would be quashed on that ground.
2. Since the planning permission and the conditions were contained in a decision letter, it was possible to resolve any ambiguity by reference to the remainder of the letter. Considered in context, the differing references to “cultural mews” and “cultural institution” were simply the result of a typographical error, and did not provide grounds for quashing the inspector’s decision.
Peter Harrison (instructed by Altheimner & Gray) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first defendant; Christopher Boyle (instructed by Linklaters) appeared for the second defendant, Asia House.
Sally Dobson, barrister
