Van Dem Boomen & Anor, R (on the application of) v Ashford Borough Council & Anor

An inspector must give parties a fair opportunity to address an issue which may determine a planning appeal. A general agenda item is insufficient where the inspector proposes to investigate a substantially new case involving alternative accommodation, relocation of storage and comparative environmental effects. A decision based on that undisclosed issue breaches natural justice.

The reasonableness of seeking a planning obligation is distinct from the reasonableness of pursuing an appeal against refusal of permission. An inspector’s conclusion that an obligation was unnecessary does not, by itself, establish unreasonable conduct warranting an award of costs.

The claimants challenged an inspector’s decision refusing planning permission for a farm bungalow and a related decision refusing their application for costs. The planning authority accepted the agricultural need for the dwelling but sought a Town and Country Planning Act 1990 section 106 agreement to prevent future severance from the holding.

The inspector accepted that the agreement was unnecessary but refused permission on the separate basis that an existing oast house could be converted into agricultural workers’ accommodation. The central issues were whether the claimants had been given a fair opportunity to address that alternative and whether the authority had acted unreasonably in pursuing the section 106 requirement.

1. Planning appeal. The section 288 application was allowed and the inspector’s planning decision was quashed. The governing question was whether the claimants had a “fair crack of the whip”: whether they were deprived of a reasonable opportunity to present material on an approach which they could not reasonably have anticipated.
2. The inspector’s agenda item concerning the availability of other accommodation did not fairly notify the claimants that he would determine the appeal by investigating whether the oast house could be converted, whether storage could be relocated, whether a smaller storage building could be erected, and whether the resulting arrangement would avoid the harm caused by the bungalow. Those matters were not fairly and squarely raised before the hearing. The inspector therefore decided the appeal on a wholly novel and determining issue without giving the parties a fair opportunity to respond. That was a clear breach of natural justice.
3. The position might have differed if the oast house had benefited from planning permission for residential conversion, because the claimants would then have been expected to explain why that permission had not been implemented. The parish council was mistaken about that matter, however, and the inspector’s wider investigation was not fairly opened up by the limited discussion at the hearing or the site visit.
4. Costs application. The judicial review application was dismissed. The reasonableness of imposing a section 106 obligation is distinct from the reasonableness of the authority’s conduct in resisting the appeal. Reasonable people may differ on whether a particular condition or obligation is justified. The inspector’s conclusion that the obligation was unnecessary did not require the conclusion that the authority had acted unreasonably in pursuing its argument.
5. Permission to appeal was refused in both matters. The first defendant was ordered to pay the claimants’ section 288 costs, summarily assessed at £10,033.45 including VAT. The claimants were ordered to pay the first defendant’s judicial review costs, summarily assessed at £3,726.

Not stated in the judgment.