Case No: C1/2007/2871
Neutral Citation Number: [2008] EWCA Civ 890
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE LLOYD JONES)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 11th June 2008

Before:

LORD JUSTICE PILL,
LORD JUSTICE KEENE
and
LORD JUSTICE TOULSON
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Between:

	FRANCIS
	Appellant	
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FIRST SECRETARY OF STATE AND ANOTHER	
Respondent	

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(DAR Transcript of 
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Mr P Marshall (instructed by Messrs Jansons) appeared on behalf of the Appellant.

Ms L Busch (instructed by Treasury Solicitors) appeared on behalf of the Respondent.

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Judgment
Lord Justice Pill:

1.	This is an appeal against a decision of Lloyd Jones J dated 29 November 2007, whereby he dismissed an application by Mrs Ondine Francis (the appellant) to quash decisions of the First Secretary of State dated 15 December 2005.  The Secretary of State, by an inspector appointed by him, dismissed appeals by the appellant against refusals by the London Borough of Greenwich to remove condition 3 from a planning permission the borough had granted at 76 Royal Hill, Greenwich, London SE10.  

2.	The appellant claims that in the appeal process she was unfairly treated.  Planning permission had been granted on 1 October 1987 for the use of the premises as a tea room and coffee shop.  Condition 3 provided that no cooking shall be carried out on the premises at any time without the prior approval of the council. 

3.	The premises are situated on the ground floor of a three-storey brick and timber building built in about 1840.  The building is located on a street of mixed uses near the centre of Greenwich and in the West Greenwich Conservation Area.  The upper floors of the building, and both adjoining buildings, are in residential use.  In October 2004 planning permission was granted for the erection of a single-storey extension at the rear of the premises, subject to conditions, one of which was that the premises should not be used for an A3 use.  Following the service of an enforcement notice requiring the appellant to comply with condition 3, she applied for the condition to be removed.  

4.	That application was refused on 23 July 2004 for reasons stated: 

“(1) The removal of the condition prohibiting cooking on the premises is considered to alter the use to an A3 use, which would impact detrimentally on the amenities of neighbouring residents and the locality generally, through an increase in odour, noise, activity, litter and loss of privacy and car movement, contrary to Policies H4, E6, E82 and S21 of the Unitary Development Plan and Policies SH4, E1, E4 and TC29 of the Second Deposit Draft Unitary Development Plan.

(2) The establishment of an A3 use without suitable odour and noise control is considered to impact detrimentally on the amenities of neighbouring residents and the locality generally through an increase in odour, noise and activity, contrary to Policies H4, E6, E8, S21 and Policies SH4, E1, E4 and TC29 of the Second Deposit Draft Unitary Development Plan. 

(3) The establishment of a ventilation system to control odours is considered likely to have a deleterious impact on the visual and acoustic amenities of the locality, affecting the amenity of neighbouring residents and the Conservation Area generally, contrary to Policies H4, D4, D8, D18, E6 and E8 of the Unitary Development Plan and Policies D1, D16, SH4, E1 and E4 of the Second Deposit Draft Unitary Development Plan.

(4) The removal of the condition prohibiting cooking on the premises into an A3 use.  The replacement of an A1 use with an A3 use in this location is considered to deleteriously impact on the safeguarding of the neighbourhood shopping parade contrary to Policy S10 of the Unitary Development Plan and Policy TC19 of the Second Deposit Draft Unitary Development Plan.”

Both A1 and A3 are restaurant-type uses.  The distribution need not be considered in detail; A3 is more extensive.

5.	Two appeals were brought.  Appeal A sought the variation of condition 3 so as to read: 

“The preparation of hot and cold food for sale on the premises shall be limited to soup, simple vegetarian based pasta dishes, simple egg, cheese, bean and vegetable based dishes, toasted sandwiches, teacakes, baguettes and croissants.  The preparation of hot food shall include the reheating of cold food by microwave oven.  The baking of approximately 25 fresh cakes each working week shall also be permitted.”

By appeal B the removal of condition 3 was sought.  

6.	Though not stated in the decision letter, the appeal was conducted under the Town and Country Planning (Inquiries Procedure)  (England)  Rules  2000 (“the Rules”) which provided, under paragraph 11(2), for a hearing which: 

“…shall take the form of a discussion led by the inspector and cross-examination shall not be permitted unless the inspector considers that cross-examination is required to ensure a thorough examination of the main issues.”

Under regulation 11(4), at the start of the hearing: 

“…the inspector shall identify what are, in his opinion, the main issues to be considered at the hearing and any matters on which he requires further explanation from any person entitled or permitted to appear.”

By virtue of regulation of 11(5): 

“Nothing in paragraph 4 shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector...”

7.	At paragraph 3 of his decision letter, the inspector set out the main issues performing his function under paragraph 11(4): 

“(1) The effect of varying or removing the condition on the living conditions of nearby occupiers, in terms of odours and noise and disturbance;
(2) Whether the proposals preserve or enhance the character or appearance of the West Greenwich Conservation Area; 
(3) The effect of varying or removing the condition on the vitality and liability of the shopping parade.”

The inspector found in the appellant’s favour on issue 3.

8.	The basis of the appeal is that the inspector did not perform the inquisitorial role expected of him at the informal hearing held under the 2000 rules.  Further guidance as to procedure at such hearings is provided in ODPM Circular 05/00 of 28 June 2000, at paragraph 26: 

“The hearings procedure is simpler and quicker than the inquiries procedure.  A hearing enables the parties to present their case fully and fairly in a more relaxed and less formal atmosphere than at an inquiry.  It usually takes the form of a round-the-table discussion led by the Inspector.  Without formal cross-examination or advocacy, hearings can be much less daunting for unrepresented parties. Where one of the parties has exercised their right to be heard, the Department’s policy is to promote the use of hearings in preference to inquiries for appropriate cases.  However, hearings are not suitable for all planning appeals, eg where a substantial number of third parties wish to speak, or where complex policy or technical issues are likely to be raised.”

Thus the three procedures are the written representation procedure, the informal hearing procedure and the procedure by way of public local inquiry.  The appellant did not request a public local inquiry in this case.  

9.	The hearing before the inspector, including a site visit, lasted from 10am to 6pm without a break for lunch.  Over 30 people were present, including two representatives of the borough and occupiers of adjoining premises.  The appellant submits that it is striking that, not included in the list of issues, were the specification, suitability and likely performance of the ventilation scheme which had been proposed by the appellant.  I have to say that issue 1 appears to me to be stated about as broadly as it could be and certainly comprehended a consideration of ventilation and of any ventilation schemes put forward.  The inspector at paragraph 11 of his decision letter noted the appellant’s submission that: 

“…a more appropriate condition [more appropriate than condition 3] would require the approval and installation of a mechanical extract system.”

He noted the submission that limited cooking should be permitted: 

“…either by way of removing the condition or by imposing a new condition that restricts cooking to certain items.”

10.	The inspector considered the impact on neighbouring residents of the proposed alteration, amendment or removal of condition 3: 

“A simple dish does not necessarily mean one that may not cause a nuisance by way of smell.  A good example of this would be potato chips.  Furthermore, the suggested condition would not restrict the quantity that could be cooked, which would only be limited by the equipment used and, to some extent, the size of the kitchen.  In my view, trying to control smells by limiting the type of food cooked by imposing the suggested condition would be ineffective.”

11.	The inspector also considered the construction of the premises: 

“17. I do not doubt that due to the rather basic construction of the floors and walls of this old building and the timber access stairs that pass through the centre of the floor plan, cooking smells may permeate easily to be noticed by the residents of the flat above and those of adjoining properties. The windows of the living areas of 3 dwellings are also in close proximity to the back door of the kitchen and smells are very likely to emanate by this external route.  I understand that in warm weather, that door and a small window is kept open for reasons of ventilation and comfort.  However, it is also on warm days when residents will desire to open their own windows.  The rear area of gardens is restricted by high walls to the east and north (that to the north being at least 3 storeys high) and I consider smells may not easily disperse, depending on weather conditions.  I conclude that the activity of cooking in the appeal property as it stands would detract from the living conditions of adjoining residents.

18. Complaints have been very regular since the use commenced, but these related only to the limited cooking involved preparing vegetarian dishes.  I consider that if a different operator took over the premises, the cooking of meat or fish, or curry would be likely to lead to more objectionable odours.  They would be difficult to control if an A3 use was permitted, without an effective ventilation and extra system.”

12.	The inspector went on to consider in some detail the ventilation system that had been proposed.  The central complaint of the appellant is that the inspector misunderstood what was proposed and failed to put to the appellant at the hearing points on which he subsequently found against her.  The high level duct was not considered.  There was no evidence of the fans proposed in the ventilation system creating noise.  The inspector’s conclusions on the ventilation system must be set out in full: 

“19. Turning to the ventilation system that has been proposed, planning permission was granted in October 2005 for a rear extension that provides a modern toilet facility and a slightly enlarged customer area.  As part of the appeal submission, a ventilation scheme was submitted that has been approved by the Council’s Environmental Health and Building Control Departments, which could be installed as part of the extension and improved works.  It includes a heated intake at the front of the building combined with a grease filter and activated carbon filter at the rear.  The appellant suggests that this removes some of the force of the Council’s reasons for refusal.  In my view, whilst a filtered extract must lead to some improvement, unless it is combined with a proposal to seal the internal walls and floors, some smells are likely to continue to permeate through by this route.  Furthermore, there is no high level extract proposed.  The Public Services division of the Council advised that a low level discharge would not be acceptable.  In addition, no indication of the likely performance of the filter is given and I consider it is extremely likely that cooking smells will still be perceived by adjacent occupiers, particularly when the filter needs changing, simply due to the close proximity of their windows and living areas to the extract.”

13.	At paragraph 20 the inspector considered noise.  He stated at paragraph 21: 

“I have considered the possibility that a high level ventilation extract could be installed but whilst such a system could also be subject to approval by the Council by way of a condition, without a firm proposal the visual effect on the Conservation Area and the locally listed building cannot be properly assessed.”

At paragraph 23 the inspector expressed his conclusion.  He was satisfied that: 

“…the condition in dispute is reasonable, necessary and enforceable, and serves a useful planning purpose.  As proposed, the applications to remove or vary the condition would conflict with the amenity protection objectives [of the plan].”

14.	Following that conclusion, the inspector went on, under the heading “The Conservation Area”, to consider the ventilation system further.  Paragraph 24: 

“The reasons for refusal suggest that the effect of the proposals on the Conservation Area is limited to the establishment of a ventilation system, which would be likely to have a deleterious impact.  At the time of the applications, the appellant suggested that the Council could impose a suitable condition requiring prior approval of an extract system, but no information was provided to show how the scheme could be installed.  In my view, the potential impact of ductwork and grilles on the character or appearance of the conservation area on the appeal property which is locally listed, given the lack of any information, could reasonably be considered to be potentially harmful, particularly as the Public Services division had advised that a high level duct was necessary.

25. The appellant submitted further details in May 2005, referred to above, but for a low level extract solution.  An external street elevation was not provided for that design, but was included with the contemporaneous planning application for an extension.  I do not disagree with the appellant in the light of this scheme, a dialogue could have ensued that might have led to a visually acceptable solution.  The failure of the Council to provide any response is regrettable.  However, as the later proposal was for a low level extract that did not meet the requirements of the Public Services division I am satisfied that for this reason for refusal has been adequately justified.  The proposals would conflict with UDP policies D4, D8 and D18 which seek to protect the character of the area.”

Thus twice in that paragraph the inspector refers to the Public Services division of the authority having advised that a high level duct was necessary.  In paragraph 21 he had noted that there was no firm proposal for such a duct.

15.	The appellant submits that it was her and her advisers’ perception at the time of the hearing that the issue of high level ventilation had fallen away and that the appeal was conducted on her behalf on that basis.  It is submitted that nothing was said at the hearing which might have caused the appellant to think that the proposed ventilation system which had been proposed on the basis of a report from Mr Love, consulting engineer, was considered to be less than satisfactory.  At no time, it is submitted, did the council identify the absence of a high level duct as a ground of objection to the appellant’s scheme.  If the inspector was aware of that requirement it must have been obvious to him that the appellant’s submissions at the hearing were based on false premises -- that is, that there was no continuing requirement for a high level duct.  The inspector’s conclusion in his letter, that a high level duct was required, was a central plank of his reasoning.  Neither that nor the question of noise from the fans as a part of the scheme were issues that had been explored at the hearing.  If the inspector was alive to the importance of the high level duct, it is submitted, he was bound to raise the issue and put it to the appellant.  It was his duty to lead the discussion and, if he was considering a decision that a high level scheme was necessary, it was his duty to raise the question during the long meeting and site visit which took place.  

16.	The judge found, at paragraph 41: 

“In the present case, I consider, for the reasons set out in detail above, that the Claimant was sufficiently alerted to the matters which were the issue in the appeals so as to relieve the Inspector of any burden to do anything further to draw attention to them.  Moreover, it is clear from Mr Stanway’s evidence that the Inspector heard detailed submissions on behalf of the Claimant as to the virtues of Mr Love’s scheme and how they would provide an answer to the objections maintained by the Council.”

In support of that general conclusion, the judge had stated at paragraph 31: 

“In these circumstances it should have been plain to the Claimant and to her advisers that the question of the effectiveness or adequacy of the proposed ventilation system was far from closed at the time of the hearing.  On the contrary, this was a key issue for the inspector to continue.”

And at paragraph 33: 

“I am satisfied that there was no reasonable basis on which the Claimant or her advisors could have concluded that the requirement for a high level ventilation duct was not an on-going requirement.  In particular, it is incorrect to state there was nothing before the hearing to suggest that there was an ongoing requirement for a high level ventilation duct.”

The appellant was present at the hearing and was represented by Mr Stanway, chartered town planner and chartered architect.  

17.	By way of detailed support for those conclusions, the judge referred to the contents of the Development Control Delegated Report prepared by the local planning authority in June 2004; to the reasons for refusal of consent (already cited); to the maintenance of objection by the council in their response of 11 July 2005; to the Grounds of Appeal which Mr Stanway had prepared.  It was against the background of the June 2004 report that Mr Love was instructed to make proposals which would meet the objections.  The council’s response of 11 May 2005 made clear that, though approved for other purposes, the council was not granting approval for planning purposes, which was a separate issue.  In reply to the letter of 11 May, further submissions were made to the council on behalf of the appellant on 20 May 2005.  The judge, like the inspector, found that it was regrettable that the council had not responded to the letter.  He concluded that it could not reasonably be concluded from the absence of response that a high level ventilation duct was no longer a requirement.  

18.	I refer to some of the documents mentioned by the judge.  The Development Control Delegated Report of June 2004 referred to a decision of an inspector given on 27 June 1990 where a relaxation of the relevant condition had been an issue.  The inspector stated: 

“I share the Council’s concern about the effect of allowing cooking at the subject premises on the residential amenity of adjoining occupiers, in particular the occupier of No 74 as well as the residential accommodation above the appeal premises.  In my view there is a significant difference between the preparation and serving of food for a tea room and coffee shop on one hand and cooking food on the other.  Subjecting food to heat frequently produces cooking smells that, unless properly controlled, would be likely to have deleterious effect on the neighbouring occupiers.  Extract ventilation, which was required by the environmental health officer, was to prevent the entry of insect pests.  In addition the greater activity in the kitchen which would flow from allowing cooking would in my view result in disturbance to No 74 because of the relationship between this kitchen and the rear garden of No 74.  In these circumstances I have concluded that to allow an appeal would materially detract from the residential amenity of neighbouring occupiers.”

19.	In the June 2009 Report, representations from interested parties were summarised.  It was complained that there was a likelihood of expanded operations if the conditions were relaxed and that: 

“Cooking smells permeate living roof and clothing drying outside.”

Reference was made to: 

“No cooking condition is dealt with by condition, limitation of kitchen, thin wall and no soundproofing.”

Further question were posed: 

“Wonder how enforce proper extraction of cooking smells -- can be very invasive in gardens.”

“Impossible to seal off the smells from home above. Our experience that cooking and cooked food smells which permeate premises from inside Royal Teas [that is the name of the establishment] are impossible to control.”

Having drawn a distinction between an A1 use and an A3 use, the Report continued: 

“Currently there is no ventilation system, as the subject premises have no permission for cooking.  It should be noted that no details were supplied as to a ventilation system to address any impact which may arise as a result of the removal of Condition 3.  As this is relevant to the upholding of this ‘no cooking condition’ the following evaluation is made.  The subject site is located in a Conservation Area with residences in close proximity above and beside it.  The installation of potential ducting to control cooking odours, potentially as high as the roof or alternatively, internally through the building in the building would be likely considered to impact on visual amenity, and cause nuisance from noise, vibration and discharge to local residences.”

Under the heading “Impact on the Conservation Area” it was stated: 

“The potential installation of high level ducting to control odours is likely to have a significant visual impact on the Conservation Area contrary to [policies in the development plan].”

It was concluded: 

“The subject site is unsuitable for an A3 use. Allowing cooking on the premises is considered to deleteriously impact on the amenity of local residents.  The establishment of a ventilation system to control odours is considered to deleteriously impact on the Conservation area and residential amenity.  The establishment of an A3 use in this location is considered incompatible with adjoining residential uses and to erode the safeguarding of the neighbouring shopping parade.”

It was in an attempt to deal with at least some of the points in the June 2004 Report that Mr Love was instructed by the appellant to make proposals for a ventilation system.  

20.	Before the inspector was a detailed letter from one of the neighbouring residents making some of the same points.  The authority responded on 11 July 2005 to the statement of case for the appeal: 

“This letter comprises the Council’s response to the appellant’s statement of case.”

In that statement the findings of the inspector in 1990, already cited, were set out.  The response continued: 

“The appellant states in Section 5 that no cooking condition fails the six tests for acceptability of a planning condition as set out in Circular 11/95.  The LPA considers that the condition is valid and relevant to the site’s situation and relevant to the use operated within the unit in controlling a use that would harm the amenity of neighbouring properties.”  

Further submissions were made which it is not necessary to set out.  Commenting on Mr Love’s report, the submissions continued: 

“The LPA has received a letter and information relating to a proposed mechanical ventilation system for the appeal site from the appellant.  The LPA considers that the alterations to the front of the unit necessary for the installation of the system would be harmful to the character of the Conservation Area.  The LPA considers further that the expulsion of air from the rear elevation of the [premises] would be detrimental to the amenity of neighbouring properties.”

There is no suggestion in that formal response to the appellant’s Grounds of Appeal that the council has departed in any way from the contents of the June 2004 Report.  

21.	I agree with the judge’s finding that there is no basis on which the appellant and her advisers are entitled to say they were unaware of the council’s position in relation to the appeal generally and to the need, in particular, as the authority perceived it, for a duct to be at a high level.  There was, in my judgment, no reasonable basis for a belief that the council had changed its position.  

22.	The issue which needs to be addressed is whether, in that situation, the inspector failed in his duties.  It is necessary to consider the consequences of the above finding.  The judge’s use, in paragraph, 41 of the words “relieve the inspector of any burden” was perhaps not the most appropriate.  It might suggest that the principles expressed in other cases as to the inspector’s duties did not arise.  The issue is whether and to what extent duties arose in the light of the state of knowledge which must be imputed to the appellant and her representative.  

23.	Reliance is placed on the decision of this court, in  which I gave the leading judgment, in Dyason v The Secretary of State for the Environment & Anr [1998] JPL 778, and the statement at page 784: 

“There is a danger upon the procedure now followed by the Secretary of State of observing the right to be heard by holding a ‘hearing’, that can lead for such consideration is forgotten.  The danger is that the “more relaxed” atmosphere could lead not to a “full and fair” hearing but to a less than thorough examination of the issues.  A relaxed hearing is not necessarily a fair hearing.  The hearing must not become so relaxed that the rigorous examination essential to the determination of difficult questions may be diluted.  The absence of an accusatorial procedure places an inquisitorial burden upon an inspector.”

I added: 

“I add that each case must be determined on its own merits and plainly there are limits to the inspector’s duty to ask questions…the court will need to enquire, by reference to the decision letter, whether there has been a sufficient consideration to the various cases put forward by a party and of any challenge to it.”

24.	Laws LJ agreed with that approach.
  
25.	In LB Croydon v Secretary of State for the Environment [1999] EWHC Admin 748, Keene J, as he then was, stated in relation to an informal hearing, at paragraph 43: 

“I return to the submission about the need for the Inspector to have adopted an inquisitorial role.   No one suggests that an Inspector is required to engage in a search for material not put before him.  What the Dyason case establishes is that, when there is an informal hearing which, as a matter of procedure, normally excludes cross-examination, the Inspector has to play an enhanced role in order to resolve conflicts of evidence.   In addition, such an Inspector must not arrive at a finding adverse to a party without having put the point to the party in question or his witness, and that is what happened in the Dyason case.”

26.	For the appellant, Mr Marshall relied on the decision of Collins J in The Queen (on the application of Singh) v First Secretary of State [2004] EWHC 2366 Admin.  That was a written representations case but, as one of the reasons for quashing the decision of the inspector, Collins J stated: 

“The inspector ought to have been alerted to conclude that the appellant and those advising him had ‘taken their eyes off the ball’.”

That, it is submitted, supports the claim that decisions may be quashed, even if, as on my finding, the appellant and Mr Stanway ought to have known of the position of the council. 

27.	The task of this inspector was a difficult one.  At the meeting he was faced by over 30 people.  Mr Marshall agreed that it was more a public meeting than the type of “round table” discussion contemplated by the informal hearing procedure.  A public local inquiry had not been requested by the appellant, notwithstanding the technical issues involved in relation to ventilation and the extent of local interest and opposition. 

28.	There is, in my judgment, a requirement upon an appellant, whose appeal it is, to put his case fully before the inspector.  The appellant’s advisers should have been aware, from their long involvement with the scheme, of the issues, including whether the local authority were seeking to insist upon a high level duct.  The appellant presented her case to the inspector on the basis that a low level duct was all that was necessary.  In the circumstances of this case the appellant could not expect the inspector to enquire of the appellant’s representative why he was putting the case as he was, and why he was not putting it in a different way.  Mr Stanway did not confront the position taken by the council; he did not seek to contrast the effect of a low level scheme with that of a high level scheme.  

29.	Further complaint is made that the inspector relied on evidence about issues of noise and odours that had not been explored at the meeting.  Similarly, on those detailed matters it should have been obvious to Mr Stanway that those issues were live issues which needed to be addressed.  Further, the inspector was required to consider not only the position as between the appellant and the council’s position as expressed, but also the more general public interest and the representations of other people present.  Having regard to the guidance he had been given, clearly he would be concerned to ensure that all present who wanted to make a contribution, and to put their point of view, were permitted to do so.  

30.	On behalf of the appellant the case on which he sought to rely on the issues present should have been put forward.  With the benefit of hindsight, a succinct written statement of that case handed to the inspector at the beginning of the discussion would have been helpful.  No question was raised with the council’s representatives present, by Mr Stanway, as to whether they were persisting with their requirement for a high level scheme.  That would have been the easiest and, with respect, most sensible action to take if Mr Stanway was in any doubt as to what case, by way of objection, he had to meet.  An inspector has his duties, but he is entitled to rely on a properly represented appellant to put the case fully to him.

31.	The case is more akin to that of Ouseley J in Castleford Homes Ltd v Secretary of State  & RB Windsor & Maidenhead [2001] EWHC Admin 77 than it is to Dyason.  That was a planning inquiry, where the judge found that the appellant may not have realised what the council’s position was on a particular point.  Ouseley J analysed the situation in this way, at paragraph 63: 

“It can be said that an appellant at an Inquiry should be alert to the potential rejection of its arguments by an Inspector; but that is not so easy to say fairly when the Council has not made clear its opposition to that particular argument and an Inspector does not seek to clarify the position.”  

Ouseley J added: 

“No question was put by the Inspector alerting the Claimant to the possible conclusion that the real answer to the debate between the Claimant and the Council was on-site provision for residents alone in the event that he rejected the Council's primary position.”

Paragraph 65: 

“Whilst an Inspector can reasonably expect parties at an Inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed.”

32.	Ouseley J went on to hold, on the facts of that case, that the appellant’s attention should have been drawn to the relevant issue.  In my judgment the present case is very much on the other side of the line.  This was a case where the inspector was entitled to assume that the appellant knew of the issue in relation to the high level duct, and on noise and odours, and was entitled to conclude that, advisedly, the appellant was putting her case as it was put, namely to stake all on the adequacy of the low level system.  

33.	I would add that, even on the case put forward, technical evidence, which one might have expected to be available in support, was not available.  Before the court is a long statement from Mr Stanway in which he attempts to deal with matters relied by the inspector, though in the context of the submission that the inspector was not entitled to have regard to them.  He refers, at paragraphs 28 and following of his second statement, to further information obtained  to the effect that Mr Love’s expert opinion is that “to all intents and purposes clean air” comes out of his system, and to his further opinion, which was available only well after the hearing, that “noise generated by the fans would be insignificant”.  Even had the inspector raised questions at the informal hearing on those points Mr Stanway would not have had an answer. It is submitted that telephone calls to Mr Love would have followed and the position might have been remedied.  That illustrates the need for an appellant to put his case to the inspector.  Regrettably in this case reliance appears to have been placed on the inspector exceeding what, in my judgment, was the function to be expected of him when conducting his own investigation.  

34.	I would further hold, in agreement with the judge that, even on the low level scheme, the inspector was entitled to make the findings he did.  Mr Marshall has addressed the court on the basis of the findings of the inspector at paragraph 19 but, though it is perhaps surprising that these are separately expressed, the inspector also reached conclusions in paragraphs 24 and 25 which require consideration.  The inspector made findings, with which the judge agreed, that there were limitations in the low level system such as to make it unsatisfactory.  In my view, the inspector was entitled to come to the conclusion he did on the low level scheme.  

35.	I would not accept the judge’s finding, at paragraph 45, that it had not been proposed by the appellant that the permeation of smells should be dealt with by way of a condition.  Mr Marshall has pointed to a suggestion made in the appellant’s written case that a condition might be appropriate.  However, there was no evidence available to Mr Stanway, had the point been raised with him, as to whether it was technically feasible to seal the premises in the way it is now proposed they could be sealed.  I have referred to the later evidence of Mr Love (not available to Mr Stanway at the hearing) in that respect.  I am far from saying that in every case where a condition is to be imposed detailed technical evidence of feasibility has to be available.  However, in the context of submissions made by objectors to this scheme, as well as by the council itself, if this point was to be pursued, evidence of feasibility should, in my judgment, have been available. 

36.	There was, in the inspector’s approach in Dyason, a failure which led to the decision of this court.  There has been a failure in the present case but one, in my judgment, on the appellant’s behalf.   An inspector’s duty to investigate does not extend to the length which it is submitted in this case it should.  It does not relieve an appellant of the responsibility of preparing and setting out a case which can form the basis of the discussion at the meeting.  It is not for an inspector always to root out a case which the appellant has singularly, with respect, failed to put; particularly where, as in this case, the appellant is represented by someone skilled in the field of planning.  

37.	For those reasons I would dismiss this appeal.

Lord Justice Keene:  

38.	I agree.  Had the appellant not been professionally represented at the hearing by a chartered town planner who was also a chartered architect, there would have been a stronger argument for a more interventionist role to have been played by the inspector at this informal hearing; but when an appellant is professionally represented, an inspector is normally entitled to expect that the appellant’s case will be adequately put forward by that representative and will address at least those issues which have been identified beforehand by the pre-enquiry statements and such other documents as the planning authority’s reasons for refusing permission.  Such was the situation here.  The planning authority’s objection to a low level ventilation system had been clearly flagged up in advance of the hearing, and in those circumstances the inspector could properly proceed on the basis that if the appellant sought to establish that that objection was invalid, then evidence would be produced to that effect.  That being so, I for my part am not persuaded that the procedure adopted here was unfair.  I too would dismiss this appeal.

Lord Justice Toulson:  

39.	I agree with both judgments.  The appeal accordingly is dismissed.

Order:  Appeal dismissed