Planning permission – Notice requiring compliance with condition – Claimant seeking variation or removal of condition – Local planning authority rejecting application – Inspector dismissing appeal – Claimant applying to quash decision – Whether inspector’s decision procedurally unfair – Applications dismissed
The claimant occupied premises forming part of a property that was listed as being of architectural and historic interest. The premises comprised the ground floor of the three-storey brick and timber building, which was located on a street of mixed uses in a conservation area. Planning permission for the use of the premises as a tearoom and coffee shop was granted in 1987, subject, inter alia, to condition 3, which, in the interests of the amenities of the neighbouring properties, stated that no cooking should be carried out on the premises at any time without the prior approval of the council.
In February 2004, planning permission was granted for the erection of a single-storey extension at the rear of the premises, subject to the condition, inter alia, that the premises should not be used for an A3 use. In May 2004, following the service of an enforcement notice requiring the claimant to comply with condition 3 of the 1987 permission, she applied to the second defendant council for the removal of that condition. The application was refused on the grounds, inter alia, that the removal of the condition prohibiting cooking on the premises would alter the use of the premises to an A3 use, which was prohibited under the 2004 permission.
The claimant appealed under section 78 of the Town and Country Planning Act 1990, seeking the removal of condition 3 or its variation to permit limited cooking and food preparation for sale on the premises. An inspector appointed by the first defendant dismissed the appeal. Having identified the tests in para 14 of Circular 11/95 and referring to relevant unitary development plan, which sought to protect the character of the area and the amenity of neighbours, he concluded that the condition was reasonable and enforceable.
The claimant applied, under section 288 of the 1990 Act, for an order quashing the inspector’s decision. She contended that the decision was procedurally unfair because the inspector had accepted, without offering her the chance to deal with the issues, that: (i) the proposed ventilation system would be inadequate or ineffective to eliminate or reduce cooking odours to acceptable levels; (ii) there was a continuing requirement for a high-level ventilation duct; and (iii) noise would be an issue.
Held: The application was dismissed.
The inspector was under a duty to determine the appeals on the basis of the proposals that the claimant had put before him, including the proposed ventilation system, and that was clearly what he had done. In all the circumstances, it should have been plain to the claimant that: (i) the suitability of the proposed ventilation system was a key issue; (ii) a high-level ventilation duct was a continuing requirement; and (iv) the issue of noise was important.
Under the rules of natural justice, in exercising an investigative jurisdiction the person making a finding had to base his decision upon evidence with some probative value. He also had to listen to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry might wish to place before him, or would have so wished had he been aware of the risk of an adverse finding: Mahon v Air New Zealand [1984] AC 808; Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 EGLR 18; (1976) 240 EG 859 and R v Paddington and St Marylebone Rent Tribunal, ex parte Bell London & Provincial Properties Ltd [1949] 1 KB 666 considered.
At a hearing, as opposed to a public inquiry, the inspector did not have the benefit of cross-examination and the absence of an accusatorial procedure placed an inquisitorial burden upon the inspector. However, in the instant case, the claimant was sufficiently alerted to the matters in issue to relieve the inspector of any burden to do anything further to draw attention to them: Dyason v Secretary of State for the Environment [1998] 2 PLR 54 applied.
In any event the inspector would have reached the same conclusion since he had not been satisfied that the proposed scheme would sufficiently reduce the harm caused to the amenities of the adjoining occupiers: Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 considered.
Paul Marshall and Anna Bicarregui (instructed by Wragge & Co) appeared for the claimant; Lisa Busch (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
