Planning permission – Notice requiring compliance with condition – Appellant seeking variation or removal of condition – Local planning authority rejecting application – Inspector dismissing appeal – High Court dismissing application to quash decision – Whether inspector’s decision procedurally unfair – Appeal dismissed
The appellant occupied premises that formed 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 without council’s prior approval.
In 2004, planning permission was granted to erect 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. Following the service of an enforcement notice requiring the appellant to comply with condition 3 of the 1987 permission, she applied to the second respondent council for the removal of that condition. The application was refused on the grounds, inter alia, that the removal of condition 3 would alter the use of the premises to an A3 use, which was prohibited under the 2004 permission.
The appellant appealed to the first secretary of state. At the hearing, at which the appellant was professionally represented by a chartered town planner, a planning inspector appointed by the first respondent dismissed her appeal on the basis that the condition was reasonable and enforceable. The appellant applied for an order quashing the inspector’s decision on the ground that it was procedurally unfair since the inspector had accepted, without offering her the opportunity 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. The judge dismissed that application concluding, inter alia, that there was no reasonable basis upon which the appellant could have concluded that the requirement for a high-level ventilation duct was not an ongoing requirement: see [2007] EWHC 2749 (Admin); [2007] PLSCS 246. The appellant appealed.
Held: The appeal was dismissed.
The inspector had been entitled to conclude that the appellant should have known that the high-level duct was still in issue. The inspector had identified the main issues to be considered at the hearing and any matters on which he required further explanation. That did not preclude the parties from referring to issues that they considered relevant for the consideration of the appeal, which were not raised by the inspector.
The judge had found that the suitability of a ventilation system was in issue and there was no basis upon which the appellant or her advisers could have said that they had been unaware of the second respondents’ position in that regard. In all the circumstances, the appellant should have been aware of the matters in issue and the second respondents’ insistence on the provision of a high-level duct.
It could not be said that the judge had given an unwarrantedly restrictive and narrow interpretation to the scope of the inquisitorial function of a planning inspector on an informal hearing or had misinterpreted the inquisitorial function of an inspector. When an appellant was professionally represented, a planning inspector was entitled to expect that his or her case was put forward adequately. It was not for the inspector to rout out a case that an appellant had failed to present.
Paul Marshall (instructed by Jansons Solicitors) appeared for the appellant; Lisa Busch (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Eileen O’Grady, barrister
