The claimant applied to the second defendant council for planning permission to demolish an existing property and to replace it with a larger, three-storey building containing six flats. The council refused on the ground that the proposals would result in an intrusive form of development detrimental to the character and amenities of the area.
The claimant appealed to the first defendant secretary of state, and an inquiry was held. The inspector considered the evidence of third-party objectors, who raised issues of privacy and overlooking, and he conducted a site visit. In his decision, he identified the question of overlooking as one of the main issues to be decided, although it had formed no part of the council’s reason for refusing permission. He found for the claimant with regard to the character and visual amenity of the area. However, he dismissed the appeal on the ground that the benefits of the development would be outweighed by the harm it would cause, in terms of impact, on the living conditions of occupiers of nearby properties, with particular regard to overlooking and loss of privacy. He found that the degree of overlooking for one property in particular would be unacceptable.
The claimant challenged that decision under section 288 of the Town and Country Planning Act 1990. He contended, inter alia, that the inspector had acted unfairly in dismissing the appeal on the issue of overlooking because it had not been raised by the council and he had not identified it as a primary issue at the outset. The claimant submitted that the inspector, having decided following his site visit that the issue was of decisive importance, should have invited the main parties to make further representations on that issue or should have reopened the inquiry to receive further evidence on the matter.
Held: The claim was dismissed.
The issue of overlooking in general, and the effect of this on the privacy of one property in particular, had been raised before the inspector and had been in issue. Although the point had not been raised by the council, the claimant could reasonably have anticipated that the inspector might be swayed by the force of residents’ objections, and, having heard their evidence, the claimant had had the opportunity at that time to add whatever he wished in response. The claimant was subsequently attempting to improve his case subsequently on an issue that had been raised at the inquiry. Once the claimant and the objectors had presented their cases, it was hard to see what more could have been said on the topic. The dispute could be resolved only by the site visit, and fairness did not require the inspector to adjourn the inquiry following that visit in order to allow the claimant to supplement his case with additional evidence.
Andrew Fraser-Urquhart (instructed by Leigh Day & Co) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
