Written representations — Admissibility of further evidence — Natural justice — Building built with unauthorised dormer window — Enforcement notice and planning application — Inspector holding that dormer window’s effect undesirable — Inspector further holding that effect would not be mitigated by fixing window and glazing with opaque glass — Whether further holding in breach of natural justice — Whether matter of common sense for inspector’s decision — Whether further argument can be adduced after close of written representations — Requirement of natural justice having to be met — Enforceability of conditions — Whether new improved procedure taken into account — Inspector’s decision upheld
A block of flats, High Lawns, was built at Sudbury Hill, Harrow-on-the-Hill, pursuant to a planning permission granted in 1988. The original plans had two dormer windows in the roof, one in each wing of the block, but as a result of objections from an adjoining property, Garden House, the dormer window in the wing facing Garden House was omitted from the grant of planning permission. However, when the block was built it had both of the original dormer windows, one being unauthorised. In 1990, G purchased flat 14 (“the appeal flat”), which was situated in the roof space, with the unauthorised dormer in it.
G was served with an enforcement notice requiring him to remove the window and reinstate the roof in accordance with the approved plans. He appealed to the Secretary of State against the enforcement notice and applied at the same time for planning permission for the retention of the window. The two appeals were dealt with by written representations and were both dismissed by the inspector. He stated that, inter alia, the dormer window would be unacceptable even if it were to be fixed and glazed in opaque glass because its intrusive effect was such that it gave “an impression of overlooking” Garden House, and its retention, subject to the imposition of conditions, would be unsatisfactory.
The decision letter was challenged on the grounds of: (a) breach of natural justice in that the inspector had gone beyond the issue of the overlooking of Garden House and had considered whether the window fixed and fitted with opaque glass was objectionable without giving the parties a chance to make further representations; (b) whether or not an inspector could take into account further documents or representations after the formal close of written representations; and (c) whether the inspector had misunderstood Circular 1/85 on the question of enforceability of conditions, as well as section 187A of the Town and Country Planning Act 1990, which laid down a new and improved procedure for the enforcement of conditions. Regulation 9(1) of the Town and Country Planning (Appeals) (Written Representations Procedure) Regulations 1987 provides: “The Secretary of State may proceed to a decision on an appeal taking into account only such written representations and supporting documents as have been submitted within the relevant time-limits”.
In Wells v Secretary of State for the Environment [1992] 1 PLR 51, it was stated that the regulation was special to written representation cases and where documents other than those submitted had been taken into account, there was a clear breach of the regulation. In Winchester City Council v Secretary of State for the Environment (1979) 39 P&CR 1, Lord Denning stated that it was important that the procedure at inquiries should not become too technical. So long as everything was done fairly, and in accordance with the dictates of natural justice, that should suffice. In that case the issue was not a “scientific or technical point on which evidence from both sides was necessary or even desirable. It was a matter of aesthetic taste — or common sense if you like.”
Counsel for the Secretary of State argued, inter alia, that the Secretary of State had a discretion to admit further documents after the close of written representations, subject only to the reopening of the representations if natural justice required it. In the unreported decision of Parkin v Secretary of State for Environment (March 12 1992, before Mr Gerald Moriarty QC), the inspector accepted a document after the close of written representations. In the High Court, it was apparently common ground that regulation 9(1) was not mandatory and that the inspector could accept further documents after the close of written submissions, so long as any party affected was given the opportunity to reply. The judge held that, on the facts of the case, the owner of the appeal site had been given such opportunity.
Held The application was refused.
1. The existence of the dormer window — even if fixed shut and fitted with opaque glass — was clearly a legitimate issue within the scope of the proceedings. Prima facie the present case was within the principle laid down in Winchester. The effect of the dormer window was a matter of common sense and judgment for the inspector and further evidence had not been necessary.
2. Counsel for G had submitted that it was not further evidence so much as further argument which had sought to be adduced and that Winchester did not preclude that. However, the distinction was too fine to be acceptable. The facts in the present case were not in dispute — all that was necessary was for the inspector to look at the site and to apply his common sense and judgment. As no further evidence or argument would have advanced the matter, there had been no breach of natural justice.
3. With regard to regulation 9(1), that applied to appeals but not to enforcement notices. The court accepted that regulation 9(1) was not mandatory and that it was open to the Secretary of State in his discretion to accept further documents or representations after the formal close of written representations, subject always to the requirements of natural justice: see Parkin above.
4. Circular 1/85 in para 11 gave enforceability as one of the tests for the imposition of conditions on planning permission. It was common knowledge that enforcement procedures could often be slow and cumbersome, which was no doubt one of the reasons why section 187A introduced a new procedure for enforcement. That section was not in force at the material time though it had now been brought into force. What the court had to decide was whether there was any real possibility that the inspector’s decision at the time would have been different if he had had his attention drawn to section 187A which was then on the statute book — if not in force. In the event, even if the new procedure proved less slow and cumbersome than the old, which only time would tell, the inspector’s reservations would have still stood.
Geoffrey Stephenson (instructed by Sherwood Wheatley, of Kingston-upon-Thames) appeared for G; Rabinder Singh (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment. The second respondents did not appear and were not represented.
