Thompson v First Secretary of State & Anor

In a planning or listed-building appeal, an inspector must have all material facts and necessary information before carrying out the required balancing exercise. Where the inspector has materially misunderstood the factual basis of the case, the decision will be unlawful if the court cannot say that the error could not have affected the result. The assessment of whether a listed building will remain in use must be objective. It cannot depend solely on the owner’s intentions or present arrangements. Economic viability and the reasonableness of expecting the owner to maintain the building in its existing condition are relevant. Informal inquiries may require the inspector to act to an extent in an inquisitorial manner.

The claimant challenged an inspector’s decision dated 9 January 2004 dismissing his appeals against Barnsley Metropolitan Borough Council’s refusal of planning permission and listed building consent. The proposals involved linking two Grade II listed gatehouses at Cawthorne, thereby creating a single dwelling and enabling the southern lodge to be repaired and used.

The inspector found that the proposed link would harm the listed buildings and their setting. He also concluded that the southern lodge was already in a viable ancillary residential use and was not at risk of being lost. The claimant argued that this conclusion resulted from a misunderstanding of work carried out before the hearing, and that the inspector had failed to consider properly the building’s economic viability and future use.

1. The court could not interfere with the inspector’s planning judgment merely because it might have reached a different view. The finding that the proposed link would harm the listed buildings and their setting was a judgment the inspector was entitled to reach.

2. However, the inspector had attached weight to his view that the southern lodge had been in recent use and formed part of a viable single dwelling. The true position was that the work observed during the site visit had been undertaken in anticipation of permission and did not demonstrate actual use. The factual misunderstanding was therefore material.

3. Whether a listed building would remain economically viable did not depend on the owner’s intentions alone. The decision-maker had to make an objective judgment whether, without the proposed development, the building would remain in use and continue to exist as a listed building. The exercise also required a balance between the harm to the building and the reasonableness of expecting the owner to maintain it in its existing condition.

4. In an informal inquiry, the inspector had an inquisitorial role to an extent, as recognised in Dyason [1998] 2 PLR 54. It was important that he have all material facts and necessary information before undertaking the balancing exercise.

5. Although the inspector might have reached the same conclusion had he known the true facts, the court could not say that he would inevitably have done so. The error could therefore have affected the result and the claimant had not received a fair hearing. Both challenges succeeded. The inspector’s decisions were to be quashed and the matters sent back for fresh determination. The First Secretary of State was ordered to pay the claimant’s costs, quantified at £600. Permission to appeal was refused.

• Inspector: On 9 January 2004, dismissed the claimant’s appeals against the council’s refusal of planning permission and listed building consent.
• High Court (Administrative Court): Allowed the statutory challenges, quashed the inspector’s decisions and remitted the matters for fresh determination.