Hearings procedure — Statutory party Inspector’s decision — Council refusing to vary conditions as to opening hours of premises — Second defendant appealing against refusal — Failure to serve documents on claimant prior to hearing — Whether claimant was statutory party to proceedings — Whether inspector required to offer adjournment to enable claimant to consider documents — Application dismissed
The claimant owned property that adjoined premises in which the second defendant held yoga classes. The latter applied to the local planning authority to vary the planning permission to allow the hours of the classes to be extended. The claimant objected on the ground of noise. The local authority refused to grant the permission and the second defendant appealed to the first defendant secretary of state. An acoustic report was prepared as to the noise level at the appeal property, but this had not been served on the claimant prior to the hearing before the inspector.
The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of the first defendant, by his inspector, to allow the second defendant’s appeal. The claimant argued that he was a statutory party to the proceedings within article 2(1) of the Town and Country Planning (Hearings Procedure)(England) Rules 2000 and that, as such, he should have been served with the documents, including a copy of the acoustics report. Alternatively, the claimant contended that the inspector should have offered an adjournment of the hearing to enable the claimant to consider the contents of the report.
Article 2(1) of the 2000 Rules provided, inter alia: “‘statutory party’ means — (a) a person mentioned in paragraph (1)(b)(i) of article 19 of the Town and Country Planning (General Development Procedure) Order 1995 whose representations the secretary of state is required… to take into account in determining the appeal to which a hearing relates; and such a person whose representations the local planning authority were required… to take into account in determining the application occasioning the appeal… “.
Held: The application was dismissed.
The claimant was not covered by article 2(1), since he did not come within the first limb of the definition of “statutory party” in the 2000 Rules. Although he was an adjoining owner within the terms of article 19(1)(ii) of the 1995 Order, he did not fall within article 19(1)(i) because he was not the owner of the land to which the application related: that is, the appeal premises.
Moreover, it could not be said that the inspector had failed to take into account the claimant’s representations as required by article 19, or that she had failed to give him a fair hearing by not offering an adjournment to consider the acoustics report.
The inspector was under a duty to act fairly and to assume the “inquisitorial” function of exploring a party’s evidence sufficiently thoroughly to enable her to form the necessary understanding of the party’s case. However, she was not positively obliged to canvass the possibility of an adjournment. On the evidence, the inspector had led an informed discussion at the hearing in which the claimant took part. There was no reason why the claimant could not have sought an adjournment at that time if he thought it necessary to do so: Dyason v Secretary of State for the Environment (No 1) [1998] 2 PLR 54 considered.
Guy Williams (instructed by MJ Kusel & Co) appeared for the claimant; Jonathan Auburn (instructed by the Treasury Solicitor) appeared for the first defendant; Gordon Nardell (instructed by Jonathan Sattin, of Triyoga (UK) Ltd) appeared for the second defendant.
Eileen O’Grady, barrister
