Planning inspector – Appeal – Site visit – Council issuing enforcement notice for breach of planning control – Respondent’s inspector carrying out site visit in presence of council representative but in absence of appellant owner – Appellant appealing against respondent’s decision to uphold enforcement notice – Whether site inspection in appellant’s absence giving rise to apparent bias and real risk of prejudice – Appeal allowed The appellant had carried out development works to the exterior of her property which resulted in the issue of an enforcement notice by the council alleging a breach of planning control. The appellant appealed against the notice and received a letter from the planning inspector informing her that he would undertake an accompanied site visit, with representatives of both parties, on a specified date. The letter stated that, if either party failed to attend, the inspector would determine the most suitable course of action. That might result in an unaccompanied site visit or the visit being aborted. The appellant said that she had notified the inspector that she would not be available on the specified date and had understood that the site visit would not go ahead in her absence. In fact, the inspector decided to carry out the site visit in her absence but in the presence of a council representative. A builder engaged by the appellant, who was at the property at the time of the site visit, told the appellant that the inspector had been angry that she was not present. The inspector made an external inspection of the property and subsequently upheld the enforcement notice, subject to a number of variations. The appellant appealed contending that: (i) the inspector should not have gone ahead with the site visit when she had said she would not be available to attend; (ii) she had been denied the opportunity of making representations to the inspector during the site visit; (iii) an internal inspection of the property should have been carried out; (iv) the inspector had showed bias towards the appellant, by giving the appearance of being angry about her absence; and (v) the site visit should not have continued in the presence of a council representative when she was absent. Held: The appeal was allowed. Henry Hendron (instructed by DH Law LLP) appeared for the appellant; Gwion Lewis (instructed by the Treasury Solicitor) appeared for the respondent. Eileen O’Grady, barrister
(i) There was no proper basis on which to find that the appellant believed the visit would not take place on the specified date since the letter notifying her of the site visit had expressly warned her that the visit might proceed in her absence if she failed to attend.
(ii) The appellant’s contention that she had been denied the opportunity to make representations was wholly misconceived since a site visit was not an opportunity to make representations. Site visits were not there for the purpose of producing new submissions, which might be contentious. The function of a site visit was to enable an inspector to make a judgment about submissions that had been made, rather than to explore new possibilities: Taylor & Sons (Farms) v Secretary of State the Environment, Transport and the Regions [2001] EWCA Civ 1254; [2002] 1 PLR 16 followed.
(iii) It was for the planning inspector to decide whether an internal inspection was required. His decision could only be challenged on the ground that he had failed to exercise his discretion properly. In the present case the works complained of were all external, the matters raised could be dealt with by an external inspection and there was nothing to suggest that the inspector had exercised his discretion incorrectly.
(iv) There was no basis on which the court could conclude that the inspector had been biased since there was no evidence to suggest that he had behaved improperly when notified of the appellant’s absence.
(v) However, the clear practice on a site visit was that both parties were represented, as was reflected in the guidance published by the planning inspectorate on its website. Further, the letter sent to the appellant contemplated that, if a party failed to attend, the inspector would either conduct an unaccompanied visit or abandon it. Therefore, anyone reading that letter would have been entitled to conclude that the inspector would not conduct an accompanied visit in her absence: Hiberian Property Co v Secretary of State for the Environment (1973) 72 LGR 350; 27 P & CR 197 applied.
The planning inspector accepted that he had had a conversation with the council representative in the appellant’s absence which meant that the site visit had been at least partially accompanied by the other side and thus would be regarded as an accompanied site visit. In the light of the letter sent to the appellant and the planning guidance, she had a legitimate expectation that that would not occur and the appellant’s builder on site was not there as her representative.
It was not necessary to identify any actual prejudice to the appellant since it was important that justice was seen to be done. If an inspector had a conversation in the absence of a representative of one party there was a real risk that justice would not be seen to be done. Accordingly, there was, at the very least, a real risk that the appellant had been prejudiced and that an objective person would not consider a fair procedure to have been followed: Norfolk Capital Group Ltd v Kitway Ltd [1977] 1 EGLR 26; (1976) 241 EG 383 followed. Cotterell v Secretary of State for the Environment [1991] 2 PLR 37 and Baker v Secretary of State for Communities and Local Government [2009] EWHC 1345 (Admin) considered.
R (on the application of Tait) v Secretary of State for Communities and Local Government
Planning inspector – Appeal – Site visit – Council issuing enforcement notice for breach of planning control – Respondent’s inspector carrying out site visit in presence of council representative but in absence of appellant owner – Appellant appealing against respondent’s decision to uphold enforcement notice – Whether site inspection in appellant’s absence giving rise to apparent bias and real risk of prejudice – Appeal allowed The appellant had carried out development works to the exterior of her property which resulted in the issue of an enforcement notice by the council alleging a breach of planning control. The appellant appealed against the notice and received a letter from the planning inspector informing her that he would undertake an accompanied site visit, with representatives of both parties, on a specified date. The letter stated that, if either party failed to attend, the inspector would determine the most suitable course of action. That might result in an unaccompanied site visit or the visit being aborted. The appellant said that she had notified the inspector that she would not be available on the specified date and had understood that the site visit would not go ahead in her absence. In fact, the inspector decided to carry out the site visit in her absence but in the presence of a council representative. A builder engaged by the appellant, who was at the property at the time of the site visit, told the appellant that the inspector had been angry that she was not present. The inspector made an external inspection of the property and subsequently upheld the enforcement notice, subject to a number of variations. The appellant appealed contending that: (i) the inspector should not have gone ahead with the site visit when she had said she would not be available to attend; (ii) she had been denied the opportunity of making representations to the inspector during the site visit; (iii) an internal inspection of the property should have been carried out; (iv) the inspector had showed bias towards the appellant, by giving the appearance of being angry about her absence; and (v) the site visit should not have continued in the presence of a council representative when she was absent. Held: The appeal was allowed.(i) There was no proper basis on which to find that the appellant believed the visit would not take place on the specified date since the letter notifying her of the site visit had expressly warned her that the visit might proceed in her absence if she failed to attend.(ii) The appellant’s contention that she had been denied the opportunity to make representations was wholly misconceived since a site visit was not an opportunity to make representations. Site visits were not there for the purpose of producing new submissions, which might be contentious. The function of a site visit was to enable an inspector to make a judgment about submissions that had been made, rather than to explore new possibilities: Taylor & Sons (Farms) v Secretary of State the Environment, Transport and the Regions [2001] EWCA Civ 1254; [2002] 1 PLR 16 followed.(iii) It was for the planning inspector to decide whether an internal inspection was required. His decision could only be challenged on the ground that he had failed to exercise his discretion properly. In the present case the works complained of were all external, the matters raised could be dealt with by an external inspection and there was nothing to suggest that the inspector had exercised his discretion incorrectly. (iv) There was no basis on which the court could conclude that the inspector had been biased since there was no evidence to suggest that he had behaved improperly when notified of the appellant’s absence. (v) However, the clear practice on a site visit was that both parties were represented, as was reflected in the guidance published by the planning inspectorate on its website. Further, the letter sent to the appellant contemplated that, if a party failed to attend, the inspector would either conduct an unaccompanied visit or abandon it. Therefore, anyone reading that letter would have been entitled to conclude that the inspector would not conduct an accompanied visit in her absence: Hiberian Property Co v Secretary of State for the Environment (1973) 72 LGR 350; 27 P & CR 197 applied. The planning inspector accepted that he had had a conversation with the council representative in the appellant’s absence which meant that the site visit had been at least partially accompanied by the other side and thus would be regarded as an accompanied site visit. In the light of the letter sent to the appellant and the planning guidance, she had a legitimate expectation that that would not occur and the appellant’s builder on site was not there as her representative.It was not necessary to identify any actual prejudice to the appellant since it was important that justice was seen to be done. If an inspector had a conversation in the absence of a representative of one party there was a real risk that justice would not be seen to be done. Accordingly, there was, at the very least, a real risk that the appellant had been prejudiced and that an objective person would not consider a fair procedure to have been followed: Norfolk Capital Group Ltd v Kitway Ltd [1977] 1 EGLR 26; (1976) 241 EG 383 followed. Cotterell v Secretary of State for the Environment [1991] 2 PLR 37 and Baker v Secretary of State for Communities and Local Government [2009] EWHC 1345 (Admin) considered. Henry Hendron (instructed by DH Law LLP) appeared for the appellant; Gwion Lewis (instructed by the Treasury Solicitor) appeared for the respondent. Eileen O’Grady, barrister
