Claimant seeking planning permission for development at site – Claimant appealing against non-determination by local authority – Inspector finding absence of provision of on-site play area contrary to development plan policy – Inspector dismissing appeal – Claimant contending that issue of on-site provision not raised since it was denied opportunity to deal with issue – Whether breach of natural justice – Claim allowed
Castleford Homes Ltd (the claimant) sought planning permission for three alternative developments, each of which involved the construction of substantial, detached houses, with large gardens, on a site of approximately 0.5ha. The second defendant council failed to determine the applications and the claimant appealed.
At the inquiry, an important issue was the significance to be attached to the lack of an on-site children’s play area in the claimant’s scheme. The claimant contended that the nature and location of the development was such that on-site provision of a play area was unnecessary for the residents of the site, and that, therefore, the site was not an “appropriate location” for the provision of such a play area, as required by policy R5 of the local plan. However, the inspector concluded that the policy required on-site provision of a play area for use by on-site residents alone, and found that each scheme failed to comply with the development plan due to the lack of such provision. He accordingly dismissed the appeals.
The claimant sought to quash the inspector’s decision, pursuant to section 288 of the Town and Country Planning Act 1990, on the ground, inter alia, that there had been a breach of natural justice. It contended that: (i) the debate between it and the council at the inquiry had revolved around whether a financial contribution for off-site provision for non-residents could be required as a matter of policy; (ii) its position that on-site provision was inappropriate had not been debated at the inquiry; and (iii) the issue had never been raised by the inspector. It therefore submitted that it had been deprived of an opportunity to deal with that issue and to put forward its case. The central question was whether the claimant had realised, or could reasonably have anticipated, that the inspector, having accepted its financial contribution argument, would none the less go on to require a play area on-site for the residents’ use.
Held: The claim was allowed.
It was helpful if an inspector flagged up issues that the parties did not appear to have fully appreciated or explored, but the point at which a failure to do so amounted to a breach of natural justice was a question of degree. On balance, the council’s position as to the appropriateness of the site for a residents-only play area was insufficiently explicit or articulated so as to alert the claimant to the need to deal with the issue. No question had been put by the inspector to alert the claimant to the possibility of him concluding that such a play area was required. An inspector could reasonably expect the parties to explore and clarify the position of their opponents, but, if an inspector took a line that had not been explored, perhaps due to a party’s misapprehension as to its opponent’s true position, fairness required that the inspector give that party an opportunity to deal with the matter. The inspector was not required to do so where the party ought reasonably to have been aware, on the material and arguments presented at the inquiry, that a particular aspect needed to be addressed. In the instant case, the claimant could not have been reasonably alerted, from what was raised by the council and inspector, to the need to address the issue. While the inspector might not have appreciated the claimant’s misapprehension, the claimant ought to have been given the opportunity to address the implications of the inspector’s conclusion on the appropriateness of the site for a play area. The claimant had been denied that opportunity.
Robert Griffiths QC and James Strachan (instructed by Stuchbery Stone, of Maidenhead) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sarah Addenbrooke, barrister
