Planning appeal — Procedural unfairness — Application for new residential building on farm — Council refusing planning permission on ground section 106 agreement required — Inspector concluding section 106 agreement not necessary but dismissing claimants’ appeal on ground that existing building suitable for conversion — Whether parties denied opportunity to deal with determinative issue — Whether costs order appropriate — Claim allowed in part
The second defendant council refused an application by the claimants for planning permission to erect a new bungalow on their farm. The second defendants did not dispute the need for the bungalow. However, they insisted, contrary to the claimants’ contentions, that the usual agricultural occupancy condition was insufficient and needed to be backed by an agreement, under section 106 of the Town and Country Planning Act 1990, to guard against the possible future severance of the bungalow from the farm. The claimants lodged an appeal, which was heard by the first defendant’s inspector. The parish council lodged an objection on the ground that an existing oast house already had planning permission for conversion and should be redeveloped before a new building was considered.
The inspector concluded, on the only point raised by the second defendants, that a section 106 agreement was not required. He identified a second main issue, namely whether the need for agricultural accommodation could be met by adaptating existing premises instead of by erecting a new building. On that point, he found that the oast house, although not in fact benefiting from planning permission, was none the less suitable for a conversion that could avoid the need for a new building. He dismissed the appeal on that basis, and further refused the claimants’ request for costs against the second defendants, finding that the second defendants had not acted unreasonably in seeking a section 106 agreement.
The claimants challenged the inspector’s substantive decision under section 288 of the 1990 Act on the ground of procedural unfairness, and further sought judicial review of the costs decision. They contended that they had not been given a fair opportunity to deal with the issue of the oast-house conversion.
Held: The section 288 claim was allowed; the judicial review claim was dismissed.
(1) The claimants had not been given a “fair crack of the whip” in respect of the oast house and had lost the appeal on a point that was not fairly and squarely at issue: Castleford Homes Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 77 (Admin); [2007] PLSCS 30 applied. The inspector had approached the second main issue in a manner that the claimants could not reasonably have anticipated. Had the parish council been correct in their belief that there was planning permission to convert the oast house, the claimants could not have complained had the inspector inquired why that permission had not been implemented as an alternative to a new bungalow. However, the claimants were not put on notice that, even in the absence of such permission, the inspector proposed to explore whether the oast house was suitable for conversion. That was a wholly new point of the inspector’s own devising; it had not been identified as an issue in advance of the hearing, and neither the claimants nor the second defendants had been given a fair opportunity to deal with it. The fact that the matter may have been discussed at the site visit did not alter that conclusion in circumstances where there was no evidence of what was discussed. Accordingly, the inspector’s decision should be quashed.
(2) On the costs issue, the inspector had applied the correct test of whether the second defendants had behaved unreasonably and thereby caused another party to incur costs unnecessarily. It did not follow, from his conclusion that the second defendants’ approach failed the test of reasonableness and necessity in relation to the imposition of a planning obligation, that they had acted unreasonably in seeking a section 106 agreement. People could properly differ as to whether it was reasonable to seek a section 106 agreement. The fact that the inspector took a different view from the second defendants on that issue did not mean that they had behaved unreasonably in resisting the appeal.
Jonathan Clay (instructed by ASB Law, of Maidstone) appeared for the claimants; Andrew Sharland (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
