DJ Baker v Secretary of State for Communities & Local Government & Anor

An unaccompanied site visit does not necessarily make a planning appeal procedurally unfair. The court must consider the circumstances, including whether the affected party consented to the visit or had a fair opportunity to seek an adjournment. A site visit is not an opportunity to make fresh representations or give evidence. Even where procedural error is established, relief requires material prejudice. Where the written evidence addresses the central issue and the inspector has seen sufficient of the site, the absence of an accompanied visit may be immaterial.

The appellant challenged an inspector’s dismissal of his appeal against an enforcement notice and refusal of deemed planning permission. The enforcement notice alleged unauthorised building operations creating a stone-built two-storey building appearing to have been designed as a dwelling.

The challenge under Town and Country Planning Act 1990, section 289, alleged procedural unfairness because the inspector conducted an unaccompanied site visit after the appellant’s planning consultant failed to attend the arranged accompanied visit. The issues were whether the process was unfair and, if so, whether the absence caused material prejudice.

1. Appeal dismissed. The inspector’s decision was not vitiated by procedural unfairness.
2. The appellant’s representative had originally indicated on form CB43 that an unaccompanied site visit was appropriate or acceptable. Although an accompanied visit was later arranged at the local planning authority’s request, the representative was notified by telephone on the morning of the visit, expressly consented to an unaccompanied visit, and could have sought a postponement or rearrangement. The earlier notification error was therefore corrected by the opportunity subsequently given.
3. There was no evidential basis for alleging that the inspector was improperly predisposed against the appellant because of the representative’s non-attendance. Apparent discourtesy did not establish actual or apparent bias.
4. The court also considered prejudice as an independent basis for rejecting the challenge. The central issue under section 174(2)(c) of the Town and Country Planning Act 1990 was whether the works repaired and refurbished an existing barn or substantially created a new building. That issue depended principally on written evidence, drawings and the evidence of the works carried out. Oral representations could not properly be introduced during a site visit.
5. Following Taylor & Sons (Farms) v the Secretary of State for the Environment [2001] EWCA Civ 1254, a site visit is not an occasion for new or contentious submissions. The inspector had been able to view the structure through its openings and windows. His conclusions showed that he had considered the relevant walls and had not treated the alleged failure to inspect internally as determinative.
6. Even if there had been procedural unfairness, the appellant suffered no material prejudice. The appeal was therefore dismissed. The appellant was ordered to pay the first respondent’s summarily assessed costs of £5,418, with no VAT claimed.

• High Court (Administrative Court): the appeal under section 289 of the Town and Country Planning Act 1990 was dismissed. The court upheld the inspector’s decision dated 31 January 2008.