An inspector dealing with a planning or enforcement notice appeal will carry out a site visit. While the courts have made it clear that the function of such a visit is to enable the inspector to make judgments about submissions that have been made, and not for the purpose of producing new submissions, the rules of natural justice will still apply. The Planning Inspectorate gives clear advice in relation to site visits. If the inspector can see enough of the site from the road or public view, he or she will visit the site alone. If that is not possible, then both the appellant and a representative from the local planning authority (LPA) should go with the inspector.
The particular rule of natural justice applicable here is that the inspector should not listen to one party behind the back of the other. For instance, in Simmons v Secretary of State for the Environment [1985] JPL 253 the inspector at the close of the inquiry was seen in conversation with the chairman of the LPA’s planning committee. The court ruled that there had been no impropriety, but held that an inference of impropriety could nevertheless reasonably have been drawn from the fact of this conversation. Accordingly, it quashed the inspector’s decision. The proper test is whether a reasonable person, observing what had happened, might draw the conclusion that procedural unfairness indicative of bias had occurred.
In R (on the application of Tait) v Secretary of State for Communities and Local Government [2012] PLSCS 37 an inspector conducting an enforcement notice appeal, who had been notified that the appellant would not be available on the day, went ahead with a site visit at her property. However, he carried this out in the presence of a representative of the LPA. There was also evidence that he had a conversation with the individual in question. Later, he upheld the enforcement notice, subject to a number of variations. The appellant appealed to the High Court, her most persuasive ground of appeal being that the site visit should not have continued in the presence of the LPA’s representative when she was absent.
The court allowed the appeal, stating that it was not necessary to identify any actual prejudice to the appellant, since it was important that justice was seen to be done. An objective person would not consider that a fair procedure had been followed in this case.
John Martin is a freelance writer
