Development — Material change of use — Claimant local authority refusing planning permission — Second defendant appealing by way of written representations procedure — Whether inspector obliged to order inquiry or hearing to determine appeal — Whether inspector giving adequate reasons for allowing appeal — Claim dismissed
The second defendant appealed to the first defendant, under section 78 of the Town and Country Planning Act 1990, against the claimant’s refusal of its application for planning permission for the change of use of a ground-floor retail shop to a betting office. The appeal was determined by way of the written representations procedure provided for by section 323 of the 1990 Act and the Town and Country Planning (Written Representations)(England) Regulations 2000.
An inspector appointed by the first defendant allowed the appeal and granted planning permission. The inspector found, inter alia, that the claimant’s argument, that betting office use was not directly related to a shopping trip in accordance with the relevant development plan policy and that there were three non-retail units in a group contrary to that policy, had not been made out from the written evidence. Moreover, there was insufficient evidence to show that opening a betting office would specifically harm the vitality and viability of the district.
The claimant applied, under section 288 of the 1990 Act, to quash that decision arguing, inter alia, that: (i) since the inspector had found the evidence to be ambiguous, he was obliged to order an inquiry or hearing to determine the appeal, despite the fact that both parties had agreed that the matter be should be dealt with by way of written representations; and (ii) the inspector had failed to give adequate reasons for his decision.
Held: The claim was dismissed.
(i) In the circumstances, the inspector was not required to consider whether a different form of procedure was appropriate. As a general rule it was incumbent upon the parties to put before the inspector the material upon which they wished to rely. Both parties had indicated that they were content for the matter to be dealt with by way of written representations and the inspector was entitled to reach his decision upon the material before him. It was in exceptional cases only that, on the particular facts, fairness required the inspector to do something more. There was no obligation to notify either party, or order a hearing or inquiry, just because the written representations were unpersuasive or the evidence did not justify the assertions being made: Taylor v Secretary of State for Wales [1985] JPL 792 and West v First Secretary of State [2005] EWHC 729; [2005] PLSCS 81 considered.
(ii) Upon a fair reading of the inspector’s decision it was clear that he had given adequate reasons and there was nothing to indicate that his decision was either irrational or unfair. On the basis of the written representations before him, the inspector was entitled to find that the proposed betting office use did provide a service directly related to a shopping trip, that there would not be three or more adjoining units in non-retail use and that the proposed use would have no unacceptable effect upon viability and vitality in accordance with development policy.
Matthew Reed (instructed by the legal department of Waltham Forest London Borough Council) appeared for the claimant; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
