Development — Planning appeal – Site inspection – Local authority refusing appellant permission for replacement dwelling — Planning inspector appointed to consider appeal against refusal declining to carry out site visit – Inspector upholding refusal of local authority — Whether procedure rules requiring inspector physically to enter site – Appeal allowed
The appellant owned land on which she wanted to erect a replacement dwelling. The second respondent local authority refused her application for planning permission and she appealed. In determining her appeal, the second respondents requested a planning inspector to visit the site. However, the planning inspector declined to enter the site because the appellant objected to her being accompanied by an objector to her application for planning permission with whom she was also involved in a boundary dispute.
The inspector therefore viewed the site from its boundaries by walking along an adjacent pavement. The inspector considered that any development of the site would have an overwhelming visual effect on the surrounding neighbourhood and it would be inappropriate to grant planning permission.
The appellant appealed against the inspector’s decision. She contended that the inspector had acted in breach of the Town and Country Planning (Hearings Procedure)(England) Rules 2000 and had acted unfairly, by failing to enter onto the appeal site in order to view it.
The first respondent contended that the inspector had not been required to undertake a site visit by physically entering onto the site; even if she had been so required, any visit would have made no material difference to the outcome of her decision.
Held: The appeal was allowed.
Under the 2000 Rules, a site inspection was necessary if the planning appeal was adjourned to the site or if a site inspection was requested by an appellant or the second respondents. It was clear from the inspector’s notes that she had not adjourned the appeal so as to conduct a site visit; her notes made it clear that the appeal would not be discussed during the site visit.
Further, it was clear that the second respondent had requested that a site visit be undertaken. Under r 12(2)(b), it was essential for an inspector to enter onto a site to carry out an inspection. An external inspection was not what was intended by the Rules nor what had been intended by the inspector before she visited the site. The evidence indicated that there had been an expectation of a site visit and the failure of the planning inspector to conduct such a visit was unfair and contrary to the rules.
The instant case was analogous to Chichester District Council v First Secretary of State [2006] EWHC 1876 (Admin); [2007] JPL 389. The onus was on the appellant to show that the procedure had been breached, but where the secretary of state sought to maintain that the breach would have made no difference, the evidential burden was on him to show that that was the case. It was apparent that there was evidence from the appellant’s experts that a site visit was required and had been expected by them so that the physical dimensions of the development could be properly examined. It could not be said that, having regard to that evidence, a site inspection might not have made a difference to the planning inspector’s decision because such an inspection might have led her to give different weights to the various matters before her.
Richard Harwood (instructed by Horsey Lightly Finn) 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
