Town and Country Planning Act 1971, section 246 — Enforcement notice — Public local inquiry — Appeal against inspector’s decision — Refusal of request for adjournment after failure of appellant or his solicitor to attend at the beginning of reopened inquiry — Whether inspector’s discretion wrongly exercised — Rules of natural justice and of inquiries procedure — Authorities on adjournments considered — Appellant deprived of proper opportunity to present case through no fault of his own — Appellant should not suffer through failure of his then solicitors — Inspector erred in not allowing adjournment
was actually a company but it is convenient to treat its principal owner, Mr
Samaan, as the appellant — His operation of a minicab business from shop
premises attracted the enforcement notice from the second respondent, Southwark
London Borough Council, which led to the local public inquiry — At the
reopening of the inquiry at 10 am the representatives of the local planning
authority and the public were present but neither the appellant nor his
solicitor were in attendance — The solicitor was contacted and arrived at 11.15
am but had no papers — He said that there had been some failure of
communication between the local authority and his firm and he had been unaware
of the resumption of the inquiry — He understood that the appellant was on
holiday (in fact, the inspector later that day, when visiting the site, found
the appellant there, carrying on his business) — The inspector refused a
request for a further adjournment, which had been opposed by the planning
authority — The solicitor then endeavoured to present the appellant’s case and
some papers were delivered from his office — The inspector took the view that
it was the responsibility of the firm of solicitors to ensure that everything
was done to see that their client was adequately represented at the inquiry
main complaint was that by refusing an adjournment the inspector had deprived
the appellant of his fundamental right to have his case adequately presented
and to be allowed to put forward his evidence — A subsidiary complaint was that
when the inspector later in the day encountered the appellant on the site the
inspector should of his own motion have then decided to reopen the inquiry —
The appellant, however, had made no request to that effect at the time and no
such suggestion was made subsequently in correspondence before the issue of the
decision letter — The judge disposed quickly of this complaint — He held that
in the circumstances there was no obligation on the inspector to reopen the
inquiry of his own motion
complaint a number of authorities on adjournments were considered, including a
detailed review of Ostreicher
v Secretary of State for the Environment — The judge
concluded that, whether by reference to the rules of natural justice or to the
statutory inquiries procedure rules, the appellant was undoubtedly deprived of
the full and proper hearing to which he was entitled — An adjournment had been
necessary and its refusal was, in the circumstances, wrong — It was not the
appellant’s fault, but that of his then solicitors, that his case could not be
properly presented — In considering the question of natural justice regard
should be had to the position of the appellant personally and not simply to
that of his legal advisers under the ordinary rules of agency — Appeal allowed
The following
cases were referred to in the judgment.
Co-operative
Retail Services Ltd v Secretary of State for the
Environment [1980] 1 WLR 271; [1980] 1 All ER 449; (1979) 39 P&CR 428;
78 LGR 158; [1980] EGD 905; 254 EG 401, [1980] 1 EGLR 128; [1980] JPL 111, CA
Halifax
Building Society v Secretary for the Environment
[1983] EGD 1071; (1983) 267 EG 679, [1983] 2 EGLR 163; [1983] JPL 816
Ketteman v Hansel Properties Ltd [1987] 1 EGLR 237, HL
Ostreicher v Secretary of State for the Environment [1978] 1 WLR 810;
[1978] 3 All ER 82; (1978) 76 LGR 445; 37 P&CR 9; [1978] JPL 539, CA
R v London Rent Assessment Panel Committee, ex parte Metropolitan
Properties Co (FGC) Ltd [1969] 1 QB 577; [1968] 3 WLR 694; sub nom
Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304;
(1968) 19 P&CR 868
R v Secretary of State for the Environment, ex parte Mistral
Investments Ltd [1984] JPL 516
R v South West London Supplementary Benefits Appeal Tribunal, ex
parte Charles Bullen (1976) 120 SJ 437
Simmons v Secretary of State for the Environment [1985] JPL 253
This was an
appeal by Majorpier Ltd under section 246 of the Town and Country Planning Act
1971 against the decision of the first respondent, the Secretary of State for
the Environment, by his inspector, dismissing an appeal by the appellant,
Majorpier Ltd, against an enforcement notice issued by the second respondents
Southwark London Borough Council.
Kevin Leigh
(instructed by Iqbal & Co) appeared for the appellant; David Holgate
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment; Alan Wilkie (instructed by the
solicitor to Southwark London Borough Council) appeared for the second
respondents.
Giving
judgment, MR GERALD MORIARTY QC said: This is an appeal under section
246 of the Town and Country Planning Act 1971 against a decision of the
Secretary of State for the Environment by his inspector, who by letter dated
November 23 1988 dismissed an appeal by the appellant company against an
enforcement notice dated February 26 1987.
The appellant
company’s shares are owned, to the exclusion of others, by Mr Samaan. The
company carries on the business of a minicab operator from a former shop unit
at 19 Gerridge Street, Southwark, which is in a residential area. The company
employs a number of drivers and provides a useful service. Unfortunately, both
for it and for those who suffer, it causes disturbance, particularly at night,
in what is otherwise a quiet, residential area, and therein lies the underlying
problem.
The
enforcement notice, a copy of which was served in February 1987, alleged breach
of planning control by making an unauthorised change of use of the shop
premises from the shop’s earlier use to minicab office, and it required that
the offending use should cease. A reason was given for the service of that
notice, namely, put quite
affected the amenities of those who lived there, particularly at night.
It is clear
from the inspector’s report at para 18 that, as a matter of fact, the business
had started without planning permission some time in 1986, so that it has now
been continuing for some three years and the neighbours, those within earshot,
have been suffering for that period. The appellant company appealed against
that enforcement notice and did so within the proper time and a date was fixed
for the holding of an inquiry into the appeal. The inquiry opened duly on June
1 1988, but it was adjourned at once by consent because the parties wished to
carry on discussions about the business and the enforcement notice. By the
parties, I mean the appellant company and those acting on its behalf and the
local planning authority.
What they had
in mind was that the company should make a planning application for the grant
of a conditional planning permission for the local authority to consider. That
consent was given and, immediately after, the inquiry was adjourned and those
discussions took place. Mr Samaan was not present on that day at the
instructions of solicitors acting for the company. He had had the benefit of a
conference in about April 1988 with Mr Hart [his solicitor].
Following on
the adjournment, Mr Samaan himself duly made a planning application — it was
received on June 16 — for permission to use the premises as a minicab office.
That application was considered in the ordinary way by officers of the council
and reported on. It came before a committee of the council on September 5 1988
and it was refused, so that the adjournment allowed in June by consent had
served the purpose of enabling the parties to discuss the matter but it had not
resulted in any change in the position in that the appellant company still had
no planning permission to operate and they were operating in the premises in
breach of planning control.
I should say
that the appeal was on more than one ground, but ultimately the other grounds
were withdrawn and the appeal proceeded effectively only on ground (a),
that is the deemed application for planning permission, as appears in para 2(e)
of the inspector’s report. I have been invited to read and have read a good
deal of affidavit evidence. It appears from that affidavit evidence that Mr
Samaan was involved in discussions over conditions with the officers of the
authority, as one would expect, and that, as a result of those discussions and
because Mr Samaan and the officers took a different view on the need for
conditions, he failed to satisfy the officers that conditions were not
necessary and the officers seemed to have concluded that if they did impose
conditions which they thought were necessary the company might well not abide
by them.
The material
on which, it seems to me, I have to make up my mind in this case is almost
entirely contained in the inspector’s report. In para 4 under the heading of
requests for adjournment the report contains this passage:
When I
reopened the inquiry at 10 am on 20th September 1988, only members of the
public and those representing the Local Planning Authority were present. I
adjourned the inquiry further so that the failure of your client to appear
could be investigated.
The inspector
continued:
5. At 11:15
am Mr Hart appeared to represent your client. He informed me that there had
been a lack of communication between the Local Planning Authority and
yourselves. On some date after the first of June 1988, your client had
submitted a planning application in respect to the development to which the
enforcement notice related. The application had been considered at a meeting of
the Council’s Planning Subcommittee on 5th of September 1988. You had received
no notification of this meeting, and you had received no subsequent
communication from the Local Planning Authority. It might be that the postal
strike was to blame. You had apparently assumed that you would get further
papers from the Council. Your client Mr Samaan (the proprietor of the appellant
company) was away on holiday (it subsequently transpired that Mr Hart may have been
incorrectly instructed on this point, as Mr Samaan was at the site when I
visited it that afternoon). While Mr Hart apologised for this state of affairs,
the upshot was that he was in the difficult position of appearing before me
with no papers and no client. He requested a further adjournment.
6. For the
Local Planning Authority, Mr Yates pointed out that members of the public were
present and that a resumption date for the inquiry had been fixed on 1st June
1988. Notification of the Planning Sub-Committee meeting had been sent to you;
Mr Yates thought that this would have been before the postal strike. The Local
Planning Authority were, however, under no obligation to your client to inform
him of the date of the meeting — many applications were determined in the
absence of applicants. At the Sub-Committee meeting your client’s application
was refused. A decision notice would have been issued immediately after that
meeting; it was accepted that, because of the postal strike, you had not
received it.
7. I refused
a further adjournment. I had fixed the resumption date for the inquiry on 1st
of June. It was your responsibility as the solicitors acting for your client to
ensure that he was adequately represented at the resumed inquiry, unless you
had ascertained beyond a doubt that the inquiry was not to be resumed as
arranged.
8. Mr Hart
then presented your client’s case. During the course of the inquiry a
representative of your firm arrived and supplied Mr Hart with papers relating
to the appeal.
Then the inspector
expressed his conclusions in paras 25 to 30 and stated his formal decision
dismissing the appeal in para 31. The challenge that is made to the lawfulness
of the decision is particularised in the notice of motion, but those
particulars can be reduced to these two points. First, the inspector by
refusing an adjournment on September 20 1988, which was the date to which the
original inquiry had been adjourned, deprived the appellant or the appellant
company of the fundamental right to make representations at the inquiry and to
give evidence.
That is the
first substantial ground. That is said to be contrary to rule 11(6) of the Town
and Country Planning (Enforcement) (Inquiries Procedure) Rules 1981 and also
contrary to the rules of natural justice. Second, it is said that, contrary to
rule 17(3) of the same rules, the inspector at the site visit should have
appreciated that the information given to him at the hearing at the inquiry
earlier in the day was wrong in that when he got to the site he found Mr Samaan,
far from being away on holiday, happily carrying on business there in the
minicab concern and that the inspector should of his own motion have
appreciated that the discrepancy between what he had been told and what he saw
on site required him to reopen the inquiry. Although the details do not appear
from the report, the inspector has filed an affidavit from which it is quite
clear, and this is not challenged. I read from para 5:
Mr Hart did
not suggest to me that I should act in accordance with Particulars 2 and 3 of
the Notice of Motion. I do not recall that Mr Samaan made any representations
to me in respect of his case. He did not request me to reopen the Inquiry. No
such suggestion was made in subsequent correspondence before the date of issue
of the decision letter.
It is quite
clear that what the inspector says there is right. It is not challenged. I can
deal first and very shortly with the second ground of complaint. It seems to me
that the inspector was not required on the facts appearing in the report and in
his affidavit to reopen the inquiry of his own motion. It was never suggested
to him either at the site visit on September 20 or in subsequent
correspondence.
Indeed there
is much further material in the affidavits indicating that, far from seeking to
have the inquiry reopened, the company’s then solicitors accepted that any
question of reopening the inquiry was really something that they did not wish
to pursue. For that purpose I have had my attention drawn to the
correspondence. I simply identify it in the exhibit to the affidavit of Mr
Yates, the material pages being MY2-14 to 17.
That
correspondence had started with the complaint from the company solicitors that
the local planning authority had not notified them that they would be proceeding
with the adjourned local inquiry on September 20. The complaint was replied to
in two letters by the local planning authority. The correspondence ended up on
November 21 with the company solicitors replying to the second of those letters
from the authority; in the second of two short sentences, which was quite
simply: ‘We confirm that we do not wish to take the matter any further’.
That leaves
the substantial matter of the first ground. Rule 11(6) of the 1981 rules, which
is headed ‘Procedure at Inquiry’, reads as follows:
If any person
entitled to appear at the inquiry fails to do so, the appointed person may
proceed with the inquiry at his discretion.
In essence,
this ground, as far as the rule is concerned, is a complaint against the
exercise of the inspector’s discretion. It is a complaint made by the company
and it is made by them acting through new solicitors who were not acting for
them at the time of the appeal. The original solicitors continued to act until
after the date of the decision letter and indeed they wrote to the appellant
having received that letter and in somewhat oblique language told him that in
their view he had no grounds for further proceedings by way of challenge to the
decision.
Mr Leigh
developed his argument on the first ground by referring me to the general and
well-known considerations of natural justice that required the appellant’s case
to be given a chance by the inspector
heard. He accepted that it was not simply litigation between private parties;
that there was a public element in it; that the procedure was an administrative
procedure and that there were, in addition to the interests of the local
authority and the department implementing the planning Acts in accordance with
their functions, the interests of third parties to be borne in mind.
He also made
the point that generally in relation to requests for an adjournment the
approach of the courts in litigation has been that, if an award of costs will
meet any disadvantage that may be suffered by one party or another as a result
of the adjournment, then generally speaking the adjournment should be allowed
so that cases can be properly heard and final decisions arrived at having heard
both parties fully.
He pointed out
that the inspector may have had that in mind in that he dealt very carefully
and extensively with what he understood to be the appellant’s case and did so
rather more fully, that is to say, than one would necessarily expect in a report
on an inquiry of this nature, and he suggested that the inspector had dealt
with it carefully to make up for the fact that the appellant’s advocate, Mr
Hart, who was present at the inquiry, started off that inquiry without any
papers at all and went right through it without a witness.
He referred me
to three cases. The first was Halifax Building Society v Secretary of
State for the Environment and the London Borough of Enfield [1983] JPL 816,
where it was a ground of appeal that the inspector had shown hostility to the
appellants by his conduct. I read from the bottom of p 817:
What was said
in this case on behalf of the applicants, the Halifax Building Society, was
that the conduct of the inspector at the hearing which he held was such that he
gave to the applicants the feeling that justice was not being done; that he was
hostile towards them to such an extent that the applicants, their witnesses and
their representatives obtained the impression that he was not prepared to
listen to their evidence or fairly consider the case they were putting forward.
Woolf J (as he
then was) tested the matter in this way. He said at the bottom of p 818:
If reasonable
people could take the view that they were not being given a fair crack of the
whip, and that view was reasonably taken in this case, it seemed that that was
the sort of situation where the court must intervene.
He concluded
that the decision of the inspector on behalf of the Secretary of State should
be quashed. That was a section 36 appeal. Mr Leigh relied on that case for the
fair crack of the whip proposition.
He referred
then to the case of R v Secretary of State for the Environment and
Westminster City Council, ex parte Mistral Investments Ltd [1984] JPL 516.
That was a decision of Forbes J on an application for judicial review of a
decision of the Secretary of State to adjourn a public local inquiry. Forbes J
was referred to the unreported case of R v South West London
Supplementary Benefits Appeal Tribunal, ex parte Charles Bullen (May 7 1976).
Forbes J relied on a particular passage from the judgment in the Bullen
case, set out at the bottom of the first column on p 517:
What the Bullen
case said in effect was that where there was refusal to adjourn and the refusal
to adjourn was a breach of the rules of natural justice because ‘taken at the
time when the defendant had been refused an adjournment necessary for him to
present his case,’ in cases such as that the court did not necessarily proceed
on the ordinary Wednesbury principles. It went a little further in this
way. What the Lord Chief Justice Lord Widgery said in that case at page 7 of
the transcript was: ‘I do not think it necessary strictly to show that no
equivalent tribunal properly instructed could have reached this decision. I think
it suffices if this Court can say with perfect confidence and conviction that
this decision not to adjourn was wrong. It deprived the defendant of the
hearing to which he was entitled, either under the rules of natural justice or
under the statutory rules in the present instance’.
Forbes J was
being pressed to apply that proposition to the decision under review. On behalf
of the Secretary of State, Mr Simon Brown said this, recorded by Forbes J in
the second column at p 517:
Mr Brown
suggested that there was a difference of kind and not merely degree between the
decision to adjourn and a decision not to adjourn. He said that a decision not
to adjourn in effect was interference with a fundamental right, whereas a
decision to adjourn (a decision to refuse not to adjourn, in other words) was
not of the same kind.
Forbes J did
not accept that distinction. He went on to say at the bottom of the same column
on p 517:
. . . if
there was no Wednesbury case here, on Bullen and as he (Forbes J)
said although he might have taken the other view, he could not say that he
could extend Bullen to this particular case, although he did not accept
Mr Brown’s argument that it could not in appropriate cases be so extended. This
was a hearing inter partes. There were the developers in effect on one
side and the planning authority on the other and the grant or refusal of an
adjournment was a matter which might have advantages or disadvantages for
either of those sides. It was impossible to say that there was a distinction to
be drawn in those circumstances between refusing an adjournment or allowing
one.
Forbes J
rejected the distinction but, Mr Leigh says, there was Mr Brown on behalf of
the Secretary of State saying that a decision not to adjourn in effect was an
interference with a fundamental right.
Finally, Mr
Leigh referred to the case of Simmons v Secretary of State for the
Environment [1985] JPL 253, where Mr Simmons had made two planning
applications for planning permission and an inquiry was held. There was, at the
close of the inquiry, a discussion which was observed between the inspector and
the representatives for people involved with one of the two parties.
Forbes J, in
his judgment, said that the first, and perhaps most important, complaint about
this inquiry was the first one relied on by the appellant, namely that natural
justice had not been done or at any rate had not been seen to be done because
the inspector had been observed to be having this conversation with two people.
He referred to some remarks by Lord Denning MR in the case of R v London
Rent Assessment Panel Committee, ex parte Metropolitan Properties Co (FGC) Ltd
[1969] 1 QB 577 and the passage in question, at p 599, where Lord Denning said:
There must be
circumstances from which a reasonable man would think it likely or probable
that the justice, or chairman, as the case may be, would, or did, favour one
side unfairly at the expense of the other. The court will not inquire whether
he did, in fact, favour one side unfairly. Suffice it that reasonable people might
think he did. The reason is plain enough. Justice must be rooted in confidence:
and confidence is destroyed when right-minded people go away thinking: ‘the
judge was biased.’
Forbes J went
on to deal with that and expressed the view at p 254 in the first column:
. . . that
the law really was that if a person could reasonably conclude, or draw an
inference from the observed facts, that justice might not be being done, then
that was a breach of natural justice which the court would correct.
So far as the
‘being seen to be done’ point was concerned, Forbes J added in the second
column on that page these words:
It was
because in many of these cases it was the disappointed litigant who got
emotional when justice had not been done, that one might have to put oneself
into the shoes of the disappointed litigant. In considering whether a person
could reasonably draw an inference did one have to expect the litigant, however
disappointed, to approach the matter entirely objectively?
Mr Leigh
relies also on that comment. With those submissions in mind, I can go straight
to the case for the Secretary of State put before me very persuasively by Mr
Holgate. It is convenient in relation to his response to look first at the
authorities with a view to seeing what the law is that has to be applied and
how it should be applied. But before I do that, Mr Holgate made these
preliminary points that the court should look only at material which was in
front of the inspector, and by and large that is plainly right. There is no question,
and nobody has suggested, that I should look at the merits of this case.
Mr Holgate
points out that there has been no challenge to the passages in the decision
letter, paras 4, 5 and 6 in particular, which I have read, and emphasises that
the appeal at the inquiry was only on ground (a). He says that it is not
appropriate to seek to resolve any conflicts which appear on the evidence
contained in the affidavits.
Forbes J has
said that the court should proceed on the facts which are presented on the most
favourable interpretation to the decision-maker, that is to say to the
inspector. Most of the facts are either not contested or appear quite clearly
from the inspector’s report and his own affidavit and I accept that my terms of
reference are principally the inspector’s own report filled out in some minor
respects by his affidavit.
Mr Holgate
relied on the decision in Ostreicher v Secretary of State for the
Environment [1978] 1 WLR 810. That was a case where there had been notice
given of a public local inquiry into objections to a compulsory purchase order.
The notice was quite lengthy. It was well over the necessary 42 days required
by the appropriate statute or regulation. When over half that time had run, and
there was less than 21 days still to run, the Secretary of State received a
letter saying that an objector would not, for religious reasons, be in a
position to attend, nor would his agents.
That letter
was answered, and it was pointed out that there was no need for the objector to
attend; that he could deal with the matter by representation. That letter from
the department was not answered by
went on with it and reached a decision in respect of the objector’s two properties,
favourably in relation to one and unfavourably in relation to the other.
Lord Denning
MR said at p 815G:
I will deal
with the two points separately. The first point is whether or not the inspector
should have gone on with the inquiry. It is one of the elementary principles of
natural justice, no matter whether it is in a judicial proceeding or an
administrative inquiry, that everything should be done fairly: and that any
party or objector should be given a fair opportunity of being heard. In this
respect the courts have often had to consider the questions of an adjournment.
At the top of
p 816 he said:
In every case
it is simply a matter of being fair to those concerned. Sometimes a refusal of
an adjournment is unfair, but quite often it is fair. It depends on the
circumstances of each particular case. But I would only say this: there is a
distinction between an administrative inquiry and judicial proceedings before a
court. An administrative inquiry has to be arranged long beforehand. There are
many objectors to consider as well as the proponents of the plan. It is a
serious matter to put all the arrangements aside on the application of one
objector out of many. The proper way to deal with it, if called upon to do so,
is to continue with the inquiry and hear all the representatives present: and
then, if one objector is unavoidably absent, to hear his objections on a later
day when he can be there. There is ample power in the rules for the inspector
to allow adjournments as and when reasonably required.
That is the
first point Mr Holgate makes. These proceedings by way of inquiry into an
appeal against an enforcement notice are an administrative inquiry and, of
course, that I accept. I note that the type of administrative inquiry that Lord
Denning MR had in mind, and was describing, was not quite the same as the
inquiry in this case, in that the inquiry in this case was essentially into an
appeal by an appellant landowner or occupier of land against a specific
enforcement notice in relation to the premises he occupied; the number of
people involved was not as great as might be thought to have been involved in
the Ostreicher inquiry, in which there was a compulsory purchase order
into the acquisition of a number of properties and which would affect the
interests of numbers of owners and occupiers.
It is quite
clear that there are people to be considered besides the local planning
authority and the members of the authority. There are all those residents in
this quiet part of Southwark. The general principle is clear; the facts are
somewhat different.
Lord Denning
MR then continued at p 816C:
Looking at
this particular case, it seems to me that the men at the department acted
perfectly reasonably in what they did.
That indicates
to me the test that has to be applied to the inspector’s actions and decisions
in this case. It is: did he act reasonably?
Lord Denning MR went on:
First, they
acted reasonably in arranging the date of April 21, the Wednesday after Easter
Monday.
He gave
reasons why that was reasonable. He then continued at p 816D:
. . . no
objection was ever taken to it by anyone until two or three months later when
this letter of April 1, 1976, was written on behalf of Mr and Mrs Ostreicher.
In that letter the surveyors do not say that they could not attend themselves
or that anyone else could not attend on behalf of Mr and Mrs Ostreicher to look
after their interests. Moreover that letter only refers to one house, no. 16.
It only says: ‘. . . our clients and their solicitors say that due to religious
reasons they are totally unable to attend.’
The minister’s representative wrote back quite reasonably. He said:
‘Should your clients deem it necessary they are open of course to arrange to be
represented at the inquiry in their absence.’
That was a reasonable suggestion from the department ‘Send your surveyor
if you wish.’ There was no reply to that
letter. If Mr and Mrs Ostreicher or their representative thought that there
ought to be a postponement or an adjournment, so far as their houses were
concerned, they could have written back and said so. They did not ask for an
adjournment.
It seems to me
that the counterpart of that first step in this case — it is not a precise
counterpart — is what occurred on June 1 1988, when there was an adjournment to
September 20 1988. So I go on with Lord Denning MR’s judgment. He said at p 816
F:
Secondly, the
inspector acted reasonably in going on with the inquiry as he did. No
representative turned up on behalf of Mr and Mrs Ostreicher. It seems to me
that the inspector could well have understood from what had happened that they
were content to leave the position as it was on the papers. Their objection had
been put forward in writing. It appeared as if they left it to the inspector,
after the inspection, to come to his decision. I see no want of natural justice
whatever in what the inspector did either at the inquiry or later on in making
his report.
Plainly, the
situation is not the same in this case at the stage that one reaches when the
adjourned inquiry date arrives on September 20 because, although it is true
that in the first place no representative turned up on behalf of the appellant
company, within an hour and thanks to the inspector and the local planning
authority, Mr Hart had been contacted and he was present; so that is one
distinction.
The second
distinction is that, having arrived, he then was there to do what he could. The
first thing he did was to ask for an adjournment. The third distinction seems
to be that there were, as far as one can see from the report, no written
representations which could serve as a statement of the appellant’s case in any
substantial way.
With those
distinctions in mind I go on to see how the third member of the court (because
Shaw LJ agreed with Lord Denning MR), Waller LJ, dealt with the matter. He
dealt with it so far as is material on p 818B. He said:
Then Mr Latham
pointed out that by rule 7 (7) at the inquiry the person appointed to hold it
‘may from time to time’ adjourn it, and so he drew a distinction between the
two aspects which applied to this case, namely, the adjournment of the whole
inquiry with all objectors having to be given notice and the public having to
be given notice and an adjournment which could be made by the inspector
himself. As Lord Denning MR has said, it is quite clear that the considerations
which have to be taken into account in adjourning an inquiry of this sort are
quite different from those of an ordinary piece of litigation, either civil or
criminal, because so many more people are concerned; and, when one looks at the
correspondence in this case, I have no doubt that the minister was acting
reasonably in what he did, finishing with the letter which was written on April
7 in which it was said that it was not possible to consider deferment of the
inquiry or a special hearing. That letter finished with this sentence: ‘Should
your clients deem it necessary they are open of course to arrange to be
represented at the inquiry in their absence.’
Up to that
time all that had been said was that they — and on one interpretation their
solicitors also — would not be able to appear on that day, but this letter gave
notice that the minister had not understood that there was the fundamental
difficulty of nobody appearing, even a surveyor on their behalf at the inquiry.
Had a letter been written then to correct that misunderstanding, very different
considerations might have arisen. Like Lord Denning MR, I have no doubt that
the rules of natural justice were properly obeyed when considering the question
of a possible adjournment.
That
underlines the distinction that seems to be present between that case and this
case. I need not go any further. Mr Holgate was relying on that case generally
and suggesting that those general principles were to be applied strictly.
Nevertheless, each case has to be decided on its own facts, and I think there
are factual differences between this case and Ostreicher’s case.
The Ostreicher
case was cited in a later decision to which Mr Holgate referred: Co-operative
Retail Services Ltd v Secretary of State for the Environment (1979)
39 P&CR 428. That was where a prospective third party at a section 36
planning inquiry received notice of the inquiry at a late stage and took the
view that it was not in a position to attend on the inquiry date and present
its case properly prepared because of its late notice.
They made an
application to the courts, to Phillips J, asking for an order that the inquiry
should be adjourned. They had already been to the Secretary of State to ask him
to adjourn the date of the inquiry. The applicants applied under section 245 of
the 1971 Act to the Court of Appeal because Phillips J dismissed their
application in the first instance.
In the Court
of Appeal, as Mr Holgate pointed out, the Ostreicher case was referred
to, and Stephenson LJ, at p 434, said:
. . . we have
listened to full argument on the question whether the Secretary of State’s
decision does result in a breach of the rules of natural justice, or, in other
words, does deny justice to the applicants or to the planning authority. In my
view, it does not. It is, of course, true that the inspector will know that the
Secretary of State has repeatedly refused to adjourn the date of this inquiry,
and he will not be able to put that out of his mind. Nevertheless, he has, as
indicated in the passage quoted from Lord Denning MR’s judgment in Ostreicher
v Secretary of State for the Environment, a complete discretion of his
own under the rules to adjourn if he thinks it is necessary in the interests of
justice to any objector or any party to do so. We have been referred to the
terms of rule 10 (8) of the Town and Country Planning (Inquiries Procedure)
Rules 1974, which gives him a wide and unfettered discretion from time to time
to adjourn. One knows that adjournments are ordered by inspectors handling
public inquiries in order to enable further objections to be taken or pursued.
I am not
indicating in any way whether the inspector should yield to the arguments
addressed to us in the course of this appeal, if and when he is asked
to do what the Secretary of State refuses to do, but it is very apparent that
the Secretary of State, by refusing to delay the start of this inquiry, has in
no way decided that the inquiry is to be continued and to proceed to a
determination by the inspector without adjournments if asked for.
The notice
given was adequate. There are, no doubt, great administrative pressures in
these cases, and I have carefully considered the possible injustice to the
parties who complain that they have not been given more time. If I thought that
they would have no opportunity of pressing those objections but would be bound
to do the best they could without any possibility of a further adjournment
being granted, I might feel able to take the view that natural justice was
being breached by the hard line taken by the Secretary of State. I am not
satisfied, however, on the material that we have, that it would not be possible
for all the parties to put adequately before the inspector, at any rate before
the end of the inquiry, the objections that they wish to put before him, and I
am by no means satisfied that, if they were to try to persuade the inspector to
grant an adjournment, their attempts would necessarily be defeated. . . . There
is a difference between a decision to postpone the start of a widely advertised
inquiry, which may case great inconvenience, and a decision de die in diem
to adjourn in order to enable particular points or material to be put before
the inspector as the inquiry goes on.
The appeal was
dismissed. Brandon LJ agreed. On that basis it seems to me that I have to ask
myself: was an adjournment necessary for the appellant to be able to present
his case on September 20 1988? There are
these subsidiary questions: if he was not able to present his case so that an
adjournment would have been necessary, was that his fault personally or the
fault of his solicitors?
I shall try to
answer those two questions. Mr Holgate says that para 5 of the decision letter
dealt with the relevant points. Mr Hart appeared to represent the appellant
after the initial delay. Mr Hart had four matters to canvass. First of all, he
was submitting that there was confusion over whether or not there was any need
for the appellant to attend an inquiry on September 20. There was no question
but that the date had been fixed. That was perfectly clear. It was never
challenged, but Mr Hart was saying that there had been a lack of communication
between the local planning authority and the appellant’s solicitors, and as a
result of that lack of communication, compounded by the postal strike, certain
assumptions had been made by the solicitors. It was those assumptions which had
led to their being unable to be present in the first instance and being unable
subsequently to provide Mr Hart with papers and/or client or other witness. I
am going to label that ‘the confusion point’.
Second, Mr
Hart was saying that Mr Samaan, the proprietor of the appellant, was away on
holiday and so not available. Third, Mr Hart had no papers. It is not usual to
conduct planning inquiries without papers. Finally, he had no client. For those
reasons Mr Hart was asking for an adjournment.
In response to
those submissions the authority’s remarks were recorded in para 6. Most of that
paragraph is concerned to controvert the confusion point. It is linked very
closely to the intermediate planning application and its fate, but the
authority accepted at the end of para 6, recorded by the inspector, that
because of the postal strike the solicitors for the appellant company had not
received the decision rejecting or refusing the application for permission.
That paragraph
is an indication that Mr Hart was relying on a point about confusion. He was
also saying that it was the solicitors who were confused. That appears also in
para 7 from the way in which the inspector put his decision. It was upon the
basis of those two submissions that the inspector arrived at his decision, and
he explained it in para 7. On June 1 he fixed the resumption date for September
20. He says in terms:
It was your
responsibility as the solicitors acting for your client to ensure that he was
adequately represented at the resumed inquiry, unless you had ascertained
beyond a doubt that the inquiry was not to be resumed as arranged.
It seems to me
that in making his decision in that way he was doing two things. He was, first
of all, accepting that there was confusion and he was accepting that the
solicitors were accurately stating their own confusion. Second, he was saying
that it was their fault as distinct from the client’s fault. He says in para 8:
Mr Hart then
presented your client’s case. During the course of the inquiry a representative
of your firm arrived and supplied Mr Hart with papers relating to the appeal.
If that be
right, it seems to me that the inspector is saying: ‘I accept that your case is
in a state of disorder’, and he is making it quite plain that at the time he
took the decision he knew, because he had been told and he accepted it, that Mr
Hart had no papers and no client and no witness. Mr Hart received some papers
later on. He never had a witness available. It seems that, if that is the
inspector’s view of the situation, then he is accepting that the appellant’s
case could not be properly presented that day. I get that from his remarks
about responsibility.
Does that mean
that the appellant can come to this court and say: ‘That is what the inspector
says and that means that I did not get a fair crack of the whip. The inspector
went on, knowing that I could not get a fair crack of the whip’? Or is he bound by the deficiencies of his
solicitors? Mr Holgate reminded me that
generally a person chooses to act by agents. He is bound by what the agents do
or do not do. He referred me to the case of Ketteman v Hansel
Properties Ltd [1987] 1 AC 189.
That was a
case where the parties sought to introduce a defence at a very late stage. The
effect of the defence would have been to deprive the other party of what looked
like being otherwise certain success. The case shows that a party is bound by
what his legal advisers do or fail to do on his behalf because lay people do
not appreciate the significance of limitation points such as that was and
plainly cannot be blamed in a personal sense if the limitation point has failed
as a matter of pleading or as a matter of preparation or as a matter of
analysis.
I accept that
is the general proposition, but it seems to me in a case such as this, which
involves questions of administrative procedure, that the rule is not
necessarily to be applied in precisely the same way, and it seems to me that
the inspector was accepting that by making the pointed remark he did about the
responsibility of solicitors. I draw that distinction because, if I were to
take the view that the appellant company were bound strictly by what was not
done on their behalf by the solicitors, then that would be the end of the
matter. But it seems that there is no authority that requires me to do that and
that, when one is considering questions of natural justice, one ought to have
regard to the position of the lay client personally and not simply to that of
his legal advisers as his representatives.
In my view, I
ought to answer the question ‘was an adjournment necessary for the appellant to
present his case?’ with the emphasis on the appellant in the personal sense.
There is no indication in the inspector’s report or his affidavit that the
appellant was personally to blame in the sense that he was the person who
should have prepared his own case. He may have been a party to that
preparation. That, I suspect, must be so. He may have been deficient in some
respects.
The
appellant’s case was not presented on September 20 because his solicitors had
not prepared it and were not ready to present it. In those circumstances my
answer to the question ‘was an adjournment necessary for the appellant to
present his case?’ is ‘Yes’.
On the
question of whether or not there is any relevance in the point that the
inspector paid no attention, and made no reference, to the possibility of
granting an adjournment on terms as to costs, Mr Holgate was quite clear that I
should not take that matter into account because it was not incumbent upon an
inspector to mention the question of costs. He was not asked for an adjournment
on the basis that the appellant would, if an adjournment were granted, be
willing to pay the costs or would have to pay the costs thrown away.
Mr Wilkie had
a point as to whether the costs thrown away would include the Secretary of
State’s costs. It is not necessary for me to go into those matters. I am not
going to arrive at any conclusion or decision on that aspect, because the
decision to go ahead on September 20 in the face of the fact that the
appellant’s case could not be properly presented is all that is necessary. It
would not add anything for me to arrive at a view on whether or not it was
possible to make good any disadvantage suffered by the authority or by individual
third parties.
The question
of costs is by the way in this case. I leave that question open. My conclusion
is that the appellant could not properly have presented his case on September
20; that it was not his fault personally; it was the fault of his solicitors.
In those circumstances, the inspector should have granted an adjournment as
asked by Mr Hart on the appellant’s behalf.
I distinguish
the case of Ostreicher in the way that I have indicated. I have arrived
at that decision reluctantly, because all these cases must turn on their own
facts. The particular points that I think arise in relation to the inspector’s
decision are these. First, the appellant was deprived of the opportunity to
call a witness. From what the inspector says, Mr Hart was surprised to find
that the appellant was at the premises and not on holiday. That is an important
matter. Whether or not there might have been other witnesses, I know not, but
it is quite clear that there was no opportunity at the inquiry on September 20
to call Mr Samaan.
Second,
whether or not a witness was called, there was no opportunity to canvass in any
satisfactory fashion the question of the extent to which a condition or
conditions might or might not have been acceptable. I do not ignore the fact
that Mr Hart attempted to deal with the question of conditions as is recorded
in para 16 by the inspector in relation to the appellant’s case, and also the
local planning authority dealt with the question of conditions as recorded in
para 21.
It seems
impossible to discuss conditions satisfactorily when the persons who would be
responsible for fulfilling conditions are not there and their views on such
conditions cannot be tested. With those two particular points in mind, it seems
to me that the appellant did not have an opportunity to present its case on
September 20 and that the inspector’s exercise of his discretion was flawed in
that way.
It is quite
clear, as Mr Leigh indicated, that the inspector dealt with this very carefully
and, although I have arrived at that conclusion, I do so without in any way
seeking to criticise the inspector personally. He took a decision on that day.
I have had the opportunity of considering it with the benefit of extensive
argument and I have arrived at the decision that that discretion was wrongly
exercised. I have arrived at that decision and, in Lord Widgery CJ’s words, I
do say with perfect confidence and conviction that this decision not to adjourn
was wrong. It deprived the defendant of the hearing to which he was entitled, either
under the rules of natural justice or under the statutory rules. In that way,
without in any sense wishing to be critical of the inspector, as distinct from
his exercise of discretion on this one occasion, I allow this appeal.
Appeal
allowed. No order as to costs. Leave to appeal granted*.
*Editor’s
note: Notice of appeal was given but subsequently withdrawn.
For further cases
on this subject see p 185
