Payne, R (on the application of) v Secretary of State for Communities and Local Government & Anor

Where an inspector is requested to inspect an appeal site, the inspection requirement is mandatory unless the hearing is adjourned to the site and genuinely takes place there. A pavement-based inspection is insufficient where the relevant assessment requires inspection of the land itself. The absence of a caveat concerning disadvantage, applicable to an adjourned hearing, does not qualify the separate duty to inspect. A procedural failure is material where the inspection would, or might, have affected the inspector’s conclusions or the balance of the decision. In such circumstances the decision is procedurally unfair and may be quashed.

The claimant challenged an inspector’s decision dated 22 April 2010 upholding the refusal of planning permission for the reconstruction of her house. The challenge principally concerned the conduct of the site visit. The inspector did not enter the claimant’s land, although the local planning authority had stated that entry was essential to assess the proposal’s position and impact on the site. The claimant argued that this breached paragraph 12 of the Town and Country Planning (Hearing Procedure) (England) Rules 2000 and was fundamentally unfair. The central issues were whether the inspector was required to inspect the land and whether the failure was material to the outcome.

1. The appeal was allowed and the Secretary of State’s decision was quashed. The other grounds were not developed because the site-visit issue was determinative.

2. Paragraph 12(1) of the Town and Country Planning (Hearing Procedure) (England) Rules 2000 permits an inspector to adjourn a hearing to the appeal site. That requires the adjourned hearing to take place on the land, or at least to include an adjourned hearing there.

3. Under paragraph 12(2), unless the hearing is adjourned to the appeal site, the inspector must inspect the land if requested to do so by the appellant or local planning authority. The requirement is mandatory. The relevant alternatives are an adjourned hearing which genuinely takes place on the site or an inspection of the land.

4. The local planning authority had requested entry to assess the proposal’s position on the site. The inspector’s inspection from the pavement, while entering the neighbour’s property, did not satisfy paragraph 12. The discretion concerning whether an adjourned hearing would proceed satisfactorily, including whether a party would be disadvantaged, did not qualify the separate duty to inspect.

5. The breach was fundamentally unfair because it deprived the claimant of the opportunity to present matters which could only properly be appreciated on the land. The court applied the approach in Chichester District Council v First Secretary of State and another [2006] EWHC 1876 Admin, where an accompanied site visit might have affected the decision.

6. Materiality was established because the inspection would, or at least might, have changed some of the inspector’s conclusions and possibly the balance between them. The expert evidence, the authority’s view that entry was essential, and the inspector’s own earlier direction for a site visit supported that conclusion. The decision therefore could not stand.

The judgment describes a planning appeal held on 10 March 2010, resulting in the inspector’s decision dated 22 April 2010. The Administrative Court allowed the claimant’s challenge and quashed that decision.