Development – House extension – Claimants’ neighbour appealing against refusal of planning permission – Inspector allowing appeal in part – First defendant council failing to inform inspector of second unsuccessful application regarding same property – Claimants challenging inspector’s decision – Whether claimants entitled to adduce evidence not before inspector – Application allowed
In May 2006, the claimants’ neighbour (M) applied for planning permission to alter his house, a detached corner property. M proposed to: (i) construct a study above the garage; (ii) erect a carport in front of the garage at ground level; (iii) revise the profile of the porch; and (iv) create a rear patio cover. The proposed extensions and alterations would have adjoined the claimant’s boundary.
The claimants maintained that they had been unaware of the application and therefore did not object. However, the first defendant local authority refused permission and M appealed under section 78 of the Town and Country Planning Act 1990. An inspector appointed by the second defendant secretary of state allowed that part of the appeal in respect of the garage side of M’s property but dismissed the part relating to the covered storage area. The claimants applied to quash the inspector’s decision pursuant to section 288 of the 1990 Act. They contended that the inspector had made a fundamental error, in that she had misunderstood the planning history, and that no reasonable inspector would have reached that decision.
In fact, M had submitted a second application in August 2006, which, in so far as it related to the proposal for the garage side of his property, was almost identical to the first application. The claimants and the first defendants objected to the second application. When deciding that application, the first defendants had been solely concerned with the environmental effect of the first-storey garage extension and permission was refused on the ground that it would have given rise to an unacceptable loss of natural light to the claimants’ property. The second application had not been drawn to the inspector’s attention; she was therefore unaware of the first defendants’ decision refusing permission for the garage extension.
An issue arose as to whether the evidence relating to the planning history of M’s property that had not been before the inspector but had become available after her decision had been given could be considered at the instant hearing to determine whether the inspector had erred in law.
Held: The application was allowed.
There was no general rule that a party to a planning appeal could not raise an argument that had not been advanced in representations made on the appeal. In exceptional cases, it might be necessary to produce additional evidence, for example to show that a matter of real importance had been omitted from the inspector’s report. However that should not be regarded as a licence to introduce material that had not been before the inspector: R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) followed; South Oxfordshire District Council v Secretary of State for the Environment, Transport and the Regions [2000] 2 All ER 667 considered.
In the instant case, the first defendants were not merely a party to the section 78 appeal but were also the custodian of the public interest, in that they were expected to draw to the inspector’s attention planning considerations that might be relevant to her decision. A recent and separate refusal of permission on discrete and relevant planning grounds was undoubtedly information that the first defendants should have provided to the inspector, but had not.
Had the inspector been aware that the first defendants had raised substantial objections to a materially identical proposal for the same property, her approach to the planning issues and planning judgment would have been more circumspect. Accordingly, entirely without fault on her part, she had failed to take account of a material consideration. Her decision was therefore vitiated and would have to be quashed and the matter remitted to the second defendant for further consideration: Tesco Stores v Secretary of State for the Environment [1995] 2 EGLR 147; [1995] 27 EG 154 considered.
Clive Wolman (instructed under the direct access scheme) appeared for the claimant; the first defendants did not appear and were not represented; Stephen Whale (instructed by the Treasury Solicitor) appeared for the second defendant.
Eileen O’Grady, barrister
