Payne, R (on the application of) v Secretary of State for Communities and Local Government & Anor

MR JUSTICE BURTON: This has been the hearing of an appeal by the Claimant, Tanya Payne, who lives at 17 Llanvair Drive, South Ascot, Berkshire, against a refusal by the second Defendant, the Royal Borough of Windsor and Maidenhead, of planning permission in respect of reconstruction of that house, upheld on appeal by an Inspector, Mrs Colebourne, for whom the first Defendant, the Secretary of State for Communities and Local Government, is responsible. That appeal was held on 10 March 2010 and resulted in a decision on 22 April 2010.

There are four grounds put forward by way of challenge to the Inspector's report. The second, third and fourth are substantive grounds which have not in fact been developed before me today by virtue of my suggestion, with which counsel agreed, that the argument should be concentrated on the first ground whose outcome looked likely, whichever way it went, to determine the result in this case.

The second, third and fourth grounds all are addressed to the contents of the appeal report. It is suggested that there was a material error by the Inspector in relation to her acceptance and recital of measurements for the house 17 and of its next door neighbour, 19, that there was an error by the Inspector in relation to her approach to the Council's minimum design guidelines, vis-a-vis the gaps between 17 as rebuilt and its neighbours, 15 and 19, and there was engagement with the apparent implication in paragraph 9 of the decision that views had been obtained by the Inspector at the site visit from the north which it was said could not have been the case.

All those matters formed the background to what, in my judgment, was the central plank, as Mr Harwood accepted, of his client's appeal, and that related to what was called in the appeal decision "the site visit" made on 10 March 2010. There was a problem about the site visit which arose in this way. I shall return in more detail to the discussion which led to that site visit in a moment. But the problem was that one of the objectors to the proposed planning permission was a neighbour, the residents, in fact a husband and wife, of the house at number 15, Mr & Mrs Catania. Although it had nothing to do with the subject matter of the appeal, this was apparently a boundary dispute which caused difficulties between the parties. When asked by the Inspector whether the Claimant would agree to Mr and Mrs Catania coming on to the site at 17 with the Inspector and the other parties, the experienced solicitor, Mr Fynn, who was acting for the Claimant at the hearing, said that the Claimant would not be happy with that course. I shall return to that problem later, but suffice it to say that that was not a ground for not proceeding at all with what then occurred, nor was it suggested to be so.

The important procedural complaint, amounting to an alleged denial of substantive justice upon which the appellant relies, must be addressed by reference, first, to the Town and Country Planning (Hearing Procedure) (England) Rules 2000. Paragraph 12 headed "Site Inspections", which read as follows:

What occurred was that at the end of the hearing on 10 March 2010 the question of what to do so far as the site visit was concerned was raised by the Inspector. It was always intended that that be done, because in the agenda of the appeal hearing, paragraph 7, the last item was "site visit arrangements". There is a contemporaneous note by the Inspector, which is helpfully tricolour, containing apparently notes of what she was intending to do, coupled with what, in fact, was said and what occurred. There is no reason to doubt the accuracy of those notes.

What there has been cause to doubt, however, and became the subject of very vigorous contest between her and a number of witnesses, including professionals who were present at the time, solicitor, architect and planner, was her assertion that the Claimant agreed that she, the Inspector, would not need to come, and would not come, onto the land. This was asserted by Mrs Colebourne in her evidence in these proceedings, and consequently it became a significant fact that needed to be resolved, namely whether the Claimant did or did not, as Mrs Colebourne asserted, agree that the Inspector should not go on the appeal site, when in fact the fundamental complaint, which I shall describe, by the Claimant was that the Inspector did not go onto the appeal site, but, as will become apparent, remained on the pavement outside the house, although she did go into number 15, the home of Mr and Mrs Catania.

There was an interlocutory application made to the Administrative Court for an order that there be cross-examination of witnesses, namely, on the one hand, the Inspector and, on the other, the four witnesses for the Claimant, who would have disagreed with her. That was resolved by a very helpful agreement reached between counsel which avoided the need for an interlocutory application and indeed avoided the need for any such examination. The agreed note says as follows:

The handwritten note, to which I referred, by the Inspector records under the heading "site visit arrangements" that she was to ask the permission of the Claimant for the Catanias to enter her land. She notes the question that she intended to ask "Is the appellant happy for them to enter site?" and the answer that was then recorded as having occurred was "No, boundary dispute". Then the following note is recorded by the Inspector. "If not [that is, if not happy or not giving permission] close hearing now and do accompanied site visit with main parties but no further discussion allowed." Then there is the note she made, which is disagreed with, that it was agreed that they would not go on site: I therefore disregard it.

What occurred on the site I do not need to go through in any detail, but suffice it to say that it is agreed that the Inspector arrived, and that there were professional witnesses; in addition to the associate of the Claimant, Mr White, there were Mr Fynn, Mr Haddon, an architect, and Mr Andrews a town planner.

One representative of the Claimant, I think Mr Andrews, went with the Inspector to number 15, and was present while the Inspector examined what she wished to on the site of number 15, and no doubt sought to satisfy herself, by examining the view from number 15 to number 17, so as to seek to reach a conclusion about the complaints of the Catanias.

However the Inspector made it plain that she was not going to enter number 17, notwithstanding that she was asked to do so. It is quite apparent from the evidence of the Claimant's witnesses that this came as a surprise to them. Mr White had staked out inside the garden of number 17 the larger curtilage of the proposed new house in order that the Inspector should, as he wished her to do, appreciate how much larger in real life, so to speak, as opposed to by reference to plans and video, the new building was going to be, in order to appreciate site lines and proximity of the extended house to number 15 on the side and number 19 on the other. He was certainly anxious that the Inspector should go in and look, but she would not do so.

The other professionals were also surprised and certainly had not expected this to be the case. To describe it I think as a stand-off is the best way of explaining what happened. It does seem that there was no doubt that a reason that was given by the Inspector was that she did not think it right to enter onto the site of number 17 without the Catanias, although this was not a matter, as I have made clear, that she made clear at the hearing, and that she did not feel that she needed to come on to the site. At any rate, they walked up and down the road a few times and that was the end of the inspection.

It cannot clearly, in my judgment, be said to have been a site inspection in any real sense. I return to paragraph 12 of the 2000 Rules. 12(1) allows the Inspector to adjourn the hearing to the site. Certainly it is clear from the agreed order, which I have read out, that the parties accept that the Inspector used the word "adjourn", but it is also plain that this was not an adjournment of the hearing in any real sense because, as she had recorded in her note, and as is agreed in the agreed note, she made it plain that there would be no further discussion of the merits of the appeal.

12(2) is, however, particularly significant in this case. I have already read it. What it provides is that in certain circumstances the Inspector must inspect the land. Those circumstances were fulfilled here, because, as per subparagraph (b) she was requested to do so. She had been requested by the Defendant Council to do so, which in its answer to the questionnaire from the Planning Inspectorate prior to the appeal had responded to question 2(b):

I am told that one of the reasons for that question being answered is that once it has been answered "yes" then an unaccompanied site visit becomes, if not inappropriate, certainly less appropriate. But the significance is that the Defendant Council had said it was essential for the Inspector to enter the site, and the reason why that was essential was given by it, as it is required to be in the questionnaire, namely "to assess position on site."

It is quite clear to me that adjourning the hearing to the appeal site must mean adjourning it to take place on the land, or, at any rate, to include an adjourned hearing on the relevant land; otherwise there is a lacuna between paragraph 12(1) and 12(2).

The requirement for there to be an inspection of the land is mandatory:

That can only mean that it is not required to have an inspection if the adjourned hearing itself takes the form of an inspection. On either basis it is quite clear that there must be a site visit, if requested, either in the form of an inspection or in the form of an adjourned hearing.

This was not to be an adjourned hearing in any way real sense, as I have described, perhaps because of the difficulties with the Catanias, because the Inspector had ruled, as has now been agreed, that there should be no further discussion of the merits of the appeal. It was, in my judgment, what is described in the heading of the appeal decision, and as proposed in the agenda, a site visit. As for the suggestion by Miss Busch that in some way the Inspector must always have intended that it would be on the outside of the site, because she must always have intended that an outside visit would be sufficient, not only in my judgment is that not consistent with what is intended by the Rules, but, more important, it is plainly not what was intended by the Inspector herself, because of the clear words that are used in her own note, whereby it was plain that she was to "enter private land" but, unless the Catanias were permitted to attend, then only with the main parties and on the basis that the hearing would be "closed now".

In those circumstances I am satisfied that this procedure was both in breach of paragraph 12 and fundamentally unfair. On the one hand, I have described the position, which, in my judgment, required there to be an inspection, and, on the other, the appellant had expected there to be an inspection and had caused, or, at any rate, agreed to the steps being taken by Mr White on her land with a view to showing the Inspector; and insofar as there was a problem in relation to the Catanias it should be noted that, although there is a discretion for an inspector in relation to an adjourned hearing if he feels that the hearing would not proceed satisfactorily because a party would be placed at a disadvantage, there is no such caveat with regard to an inspection. It seems to me clear that that must be what lies behind the Inspector's own decision, that if there was no permission for the Catanias to attend at the site visit then it would not be appropriate to hold an adjourned hearing. Whatever words she may have used, there would be a site visit with the main parties.

That amounts, in my judgment, to an important procedural irregularity, and one which deprived the Claimant of putting forward a case which she wished to put forward. It becomes analogous to the decision in Chichester District Council v First Secretary of State and another [2006] EWHC 1876 Admin in which there was a conclusion by Mr Nicol QC, sitting as a deputy judge, that there was a procedural error, by virtue of the fact that the Inspector should have, but did not, carried out in that case an accompanied site visit.

But Miss Busch, who argued the matter very vigorously on behalf of the Defendant, although she sought to resist my conclusion, to which I have come and just described, put most of her eggs in the basket of an important fallback defence. That is that even though there may have been, and in my judgment was, such a procedural error, even though there was a failure by the Inspector to allow, as she should have done, as she was mandatorily required to do so, a site visit of number 17 Llanvair Avenue, the outcome rendered that immaterial, i.e that there was no difference in the result. In Chichester District Council she had, on behalf of the first defendant, sought to make exactly such an argument and in that case failed because the learned judge concluded (see paragraph 18) that an accompanied site visit might have made a difference. Accordingly he found that the council were substantially prejudiced by the procedural error that occurred. But Miss Busch points out there that the council had been particularly anxious that the Inspector should see inside the building for reasons which were given and the Inspector on his unaccompanied visit did not see the inside.

She submits that such is nowhere near the position here. She refers to the decision of the Inspector and, in particular, to what is described in paragraph 2 as "the main issue". This had been described in the agenda, to which I have referred, and at paragraph 3 and was repeated in the decision as follows:

It should be stated at this stage that of some importance is the fact that there had been a previous planning application made by the Claimant, which had been refused by reference to the size of the building then put forward. The building for which planning permission was sought on this occasion had been substantially reduced in extent, under careful planning and architectural advice, and was submitted by the Claimant not to fall foul of any of the criticisms previously made when the earlier application was refused.

The Inspector addressed what she called such main issues and reached certain conclusions in paragraphs 5 and 6, which are relevant to the overall view of the property.

Then at paragraph 8 she said this, in a passage, which, as I mentioned earlier in the judgment, is in fact the subject of factual criticism by the appellant:

Then she says this at paragraph 9:

Then in paragraph 10, again referring to a view from the north to which exception is made, she said:

Then in paragraph 11 she talks about substantial views of the surrounding trees being eroded.

Then in paragraphs 12 and 13 she reaches further conclusions as follows:

Then she deals with that and she says:

Miss Busch submits that nothing by way of what could or would have been seen or appreciated on the site visit, had the Inspector carried it out as I conclude she should have done, would have made any difference to those conclusions.

What she submits is that, first, the main issue as set out in paragraph 2, on the basis of which she made a number of those conclusions, would still have been resolved in opposition to the wishes of the Claimant. Secondly, as I have already said, she referred to the statement by the Inspector herself, albeit in the context of a suggestion that something had been agreed which it was not as I now must decide, when she said:

It is that conclusion of the Inspector, both in her evidence and in the report, on which I have to decide, on this important question as to whether the carrying out by her of a site visit would have made a difference or, indeed, using the words of Mr Nicol QC, might have made a difference.

There is evidence from Mr White as to his staking out of the new and larger curtilage of the proposed house which he had expected the Inspector to consider. That appears in paragraphs 4 to 6 of his first witness statement of 24 June 2010, and in paragraph 10 of his second witness statement of November 2010, when he says she refused even to come up to the gate and look at the corner markers of the proposed building that could be seen from the front. It is clear from the evidence for the Claimant that the previous Inspector this carried out such a site visit. That was what the Claimant was expecting, and Mr White had prepared matters for the Inspector's consideration.

Mr Andrews, the planner, said at paragraph 7 of his witness statement that he had always assumed that no appraisal of the proposal could take place without the Inspector going on to the site and, in particular, seeing the site from where the extremities of the proposed new building would be placed. He said:

Certainly from the photographs that I have been shown it is plain that there was a very tall hedge along the full front of the house, apart from the gate of the usual size of gate suitable to fit a car, which was so high that in fact it did largely obscure most of the view of the house from the road.

Miss Busch refers to paragraph 9 of the decision which I have recited above. She submits that, as would be the case with any experienced inspector such as this Inspector was, there would be, as she submits, no need for the Inspector to go and look at the site even with pegs staked out showing the proposed new size of the new house, given that she had plans and she had the computer model of the proposal, to which the Inspector refers in paragraph 9.

There is evidence from Mr Haddon, the architect instructed by the Claimant, that the Inspector had stated that her department had not been able to open the video presentation. There may be a suggestion of that in the way that paragraph 9 of the decision is drafted - although I entirely take Miss Busch's important point, that one should not construe the decision as if it were a statute – in that she says that the computer model confirmed her site visit impressions, when if in fact she had considered the computer model first, and reached conclusions about it such that, as Miss Busch would have it, there was no real need for a site visit afterwards, one would have expected that the site visit impressions, if any, would have confirmed the computer model, i.e. the other way round.

But the fact remains that I am faced with evidence from experts for the Claimant to the contrary of the assertion by the Inspector that site inspection would have made no difference, and, apart from the evidence which I have referred to already, I return to the professional evidence of Mr Haddon. He said that he was present throughout the hearing, and had never heard any suggestion being made that the Inspector would not go on to the appeal site. He said (at paragraph 8) that if such a suggestion had been made.

There is no response to that witness statement, although it was recently served, so it may be that there was not time to do so.

It appears to me that although the onus is on the Claimant to establish that there has been a breach of procedure and unfairness, in this case at least an evidential onus rests upon the first Defendant where Miss Busch’s case is that if, which is denied but I have found, there is a procedural error it would have made no difference. But whichever way the onus lies, I am satisfied that a site inspection in this case would, or, at any rate, might have made a difference. Whether her conclusions would have been changed would have depended on a number of factors. First of all, it may be that it would have changed all her conclusions. But more significantly it is possible it would have changed some of her conclusions, and then the balance of those changed conclusions might have outweighed the remaining conclusions. I say this for the following reasons; first, the expert evidence of Mr Haddon to which I have referred: secondly, the Council's view, to which I have referred, that it was essential for the Inspector to enter the site to assess the impact of the proposal and to assess the position on site: thirdly, the fact that the Inspector herself at the hearing had directed that there be a site visit which, subject to the precise nature of it, vis-a-vis agreement with regard to the Catanias, would include entering on private land, i.e number 17, not just standing at the pavement.

In those circumstances, I am satisfied that this appeal decision, reached without that site visit in those circumstances, cannot be supported and must be set aside for procedural irregularity and unfairness. In those circumstances this appeal is allowed.

MR HARWOOD: My Lord, can I ask you for an order quashing the Secretary of State's decision?

MR JUSTICE BURTON: Yes.

MR HARWOOD: And also, my Lord an order for the claimant's costs subject to detailed assessment if not agreed?

MISS BUSCH: So, sorry, my Lord.

MR JUSTICE BURTON: He was just asking for his costs.

MR HRWOOD: Just a detailed assessment because of sorting out the (inaudible) applications.

MR JUSTICE BURTON: Thank you both.