Where a planning appeal in England proceeds by means of a hearing, as opposed to written representations or a public local inquiry, the procedure is governed by the Town and Country Planning (Hearings Procedure)(England) Rules 2000. By virtue of r 12(2) the inspector may make a site inspection, but he is bound to make a site inspection if before or during the hearing the appellant or the local planning authority “LPA) requests him to do so. The crucial wording in r 12(2) is “shall inspect the land”. However, exactly what does that involve physically, if arguments about procedural error are to be avoided?
In Payne v Secretary of State for Communities and Local Government [2010] EWHC 3106 (Admin); [2010] PLSCS 316, the appellant appealed to the secretary of state against the refusal of the LPA to grant her planning permission for a replacement dwelling. The LPA requested the inspector to make a site inspection. She did so, but declined to enter the site because the appellant objected to her being accompanied by one of the objectors to the development. The inspector therefore viewed the site from its boundaries by walking along an adjacent pavement. She subsequently refused the appeal on the ground that any development of the site would have an overwhelming visual effect on the surrounding neighbourhood.
The appellant challenged the inspector’s decision in the High Court, contending that the inspector had failed to comply with r 12(2) and, as such, had acted unfairly. The secretary of state argued that the inspector had not been obliged to enter physically onto the site and if she had been, this would have made no material difference to the outcome of the appeal.
The court upheld the appellant’s challenge. Under r 12(2), it was essential for an inspector to enter onto a site to carry out an inspection. An external inspection was not what the rules intended. The inspector’s failure to do this contravened r 12(2) and was therefore unfair. Furthermore, it could not be said – having regard to the evidence given by the appellant’s experts during the appeal – that a proper site inspection might not have made a difference to the inspector’s decision. It may well have led her to give different weight to the matters before her.
John Martin is a freelance writer
