Wheeler v First Secretary of State

An inspector determining a planning appeal must apply the correct legal test. Where an inspector misstates the governing test and the court cannot be satisfied that the error did not affect the decision, the decision is unlawful and should be quashed. The parties should then have an opportunity to make further representations.

An inspector may undertake an unaccompanied site visit from a public highway in a written-representation appeal. There is no unfairness where the parties are informed of the observations and do not request an accompanied visit or an opportunity to comment.

The claimant challenged an inspector’s decision concerning three planning appeals. Two appeals concerned a workshop erected without planning permission and turned on whether it lay within the domestic curtilage of the claimant’s dwelling. The third concerned a proposed holiday use of an annex and the continuing justification for a planning condition on highway-safety grounds.

The claimant alleged that the inspector had misunderstood the legal test for curtilage and had acted unfairly by relying on authorities not cited by the parties. He also challenged the inspector’s reliance on observations made during an unaccompanied site visit.

1. The workshop section 288 challenge succeeded. The inspector relied on Sinclair-Lockhart’s Trustees v Central Land Board [1951] 1 P&CR 195, but misstated its test by saying that the workshop must serve the dwelling in a necessary or reasonably useful way. The authority stated that it was sufficient that the land served the purposes of the house or building in that way.

2. Although the inspector referred to other matters, the court could not be satisfied that he had not applied the misstated test. The conclusion on curtilage therefore could not stand. The planning decision was quashed, and the parties were to have an opportunity to make further representations.

3. Leave to appeal against the enforcement notice decision under section 289(6) was granted and the appeal was allowed. The matter was remitted to the first respondent for rehearing and redetermination.

4. The annex section 288 challenge failed. An inspector conducting a written-representation appeal may inspect an access point unaccompanied from the public highway. Here, the inspector informed those attending that he had made observations concerning visibility, carriageway width and traffic volume. Neither the claimant nor his architect requested an accompanied visit or an opportunity to comment. The decision therefore involved no procedural unfairness or breach of natural justice.

5. The claimant was awarded two-thirds of the costs, subject to detailed assessment. The Secretary of State was awarded the remaining costs of the annex appeal.

The inspector dismissed all three planning appeals in a decision letter dated 8 December 2002. The Administrative Court quashed the workshop planning decision, allowed the related enforcement notice appeal, and remitted both matters for rehearing and redetermination. The challenge concerning the annex was dismissed.