Planning application — Extension of woodland track — Appeal by written representations procedure — Unaccompanied site visit by inspector — Whether lack of accompanied visit prejudicing claimant — Claim dismissed
The claimant owned an area of woodland that had been designated as a plantation on ancient woodland and was subject to various tree preservation orders. A cleared area within the wood had planning permission for horticultural development. The clearing could be accessed from the claimant’s adjacent property, but he considered that that route was inconvenient and wished instead to create an access from a nearby lane. The claimant applied to the second defendant council for planning permission to extend an existing woodland track that connected with the clearing. The second defendants failed to determine the application within the prescribed time, and the matter went for consideration by an inspector on an appeal against the non-determination.
The appeal was dealt with by way of the written representations procedure. The inspector also made an unaccompanied, and unannounced, site visit, which represented a change of practice on the part of the Planning Inspectorate. Dismissing the appeal, the inspector concluded that the proposed extension would harm the character, visual amenity and biodiversity of the woodland, which would not be overcome by the proposed compensation measures or outweighed by the benefit of an independent access to the horticultural enterprise.
The claimant challenged that decision under section 288 of the Town and Country Planning Act 1990. He contended that the inspector’s decision was vitiated by a failure to take account of material considerations and by the lack of an accompanied site visit.
Held: The claim was dismissed.
The inspector had not overlooked any relevant matters, and, even if she had, the matters relied upon by the claimant were not so significant as to lead to a different conclusion. Although the change of practice relating to site visits had taken the claimant by surprise, it did not provide a ground of legal challenge. Although, on an accompanied visit, both parties would have had to be present, they would not have been allowed to make any further representations or submissions. Thus, even if the previous practice had been followed, it would not have given the parties any further opportunity to advance their respective cases. Accordingly, the change in practice had not prejudiced the claimant. Moreover, as the appeal form made clear, the starting position for an appeal by written representations was that the site visit would be unaccompanied. In none of his submissions had the claimant submitted that an accompanied visit was essential. Although the inspector had had a discretion to seek an accompanied visit, that was a matter for her to determine, and her decision not to do so in the instant case could not be characterised as irrational.
Mark Beard (instructed by Brachers, of Maidstone) appeared for the claimant; James Strachan (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants, Wealden District Council, did not appear and were not represented.
Sally Dobson, barrister
