Hamsher, R (on the application of) v First Secretary of State & Anor

A person permitted to participate in a planning appeal hearing is entitled to a fair hearing, including a proper opportunity to understand the appellant’s case. The inspector’s inquisitorial duty may require an adjournment where a material document has not been seen and the opposing party needs time to address it. That duty is fact-sensitive and does not ordinarily require an inspector to propose an adjournment for entirely new expert evidence where no request is made and no specific disadvantage is identified. Planning-condition enforceability is a material planning consideration. An authority’s unwillingness or limited resources to enforce a condition does not make an otherwise legally enforceable condition invalid.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision allowing Triyoga’s appeal against Camden’s refusal to vary planning conditions governing weekend yoga classes. The claimant challenged the decision on three grounds: failure to treat him as a statutory party, procedural unfairness arising from his lack of access to an acoustic report, and failure to consider evidence that proposed noise conditions were practically unenforceable.

The court considered the meaning of statutory party under the Town and Country Planning (Hearings Procedure) (England) Rules 2000, the requirements of a fair hearing, and the legal significance of planning-condition enforceability.

1. Statutory party. The claim on this ground failed. Under rule 2 of the Town and Country Planning (Hearings Procedure) (England) Rules 2000, read with article 19 of the Town and Country Planning (General Development Procedure) Order 1995, the relevant category was confined to persons whose representations were required to be considered because they were served owners, tenants of agricultural holdings, or adjoining owners or occupiers within the specified statutory framework. The claimant, although an adjoining owner, had not been served in the relevant capacity.
2. Fair hearing. A person whom an inspector permits to appear under rule 9(2) is entitled to a fair hearing and must be enabled to understand the appellant’s case. The inquisitorial burden identified in Dyason v Secretary of State for the Environment [1998] 2 PLR 54 is fact-sensitive. Here, the claimant participated in discussion of the acoustic evidence, did not request an adjournment, and did not identify evidence he would have supplied if given further time. The Inspector had also sought the parties’ views on whether further evidence was necessary. The procedure therefore afforded a full and fair hearing.
3. Enforceability. The enforceability of proposed planning conditions was a material consideration. The Inspector was not bound by the Council officer’s view that the conditions would be practically unenforceable. The conditions were legally enforceable under the planning legislation, and the possibility of breach or a decision not to enforce did not deprive the Council of enforcement powers or render the conditions unlawful.
4. The application was dismissed. The claimant was ordered to pay the First Secretary of State’s costs of £4,750. Triyoga was awarded its costs up to and including 10 September.

First-instance judicial review application under section 288 of the Town and Country Planning Act 1990. The application to quash the Inspector’s decision was dismissed.