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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> West v First Secretary of State & Anor [2005] EWHC 729 (Admin) (27 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/729.html Cite as: [2005] EWHC 729 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 April 2005

Mr Justice Richards :

1. This is a challenge under section 288 of the Town and Country Planning Act 1990 to a decision of an inspector appointed by the First Secretary of State to determine an appeal against the refusal of planning permission. The claimant, Mrs West, had sought permission for the retention of a mobile home and hard standing for a temporary period on land at Oakwood, Trenders Avenue, Rawreth, Rayleigh, Essex. The site lies within the Metropolitan Green Belt. Permission was refused by the local planning authority, Rochford District Council. The claimant appealed to the First Secretary of State under section 78 of the 1990 Act. The appeal was conducted by the written representations procedure. By his decision dated 5 May 2004 the inspector dismissed the appeal.
2. The claimant lives in a mobile home on the site, together with her son and daughter and her husband. She bought the land with her then partner (not her present husband) in July 2001. She was served with an enforcement notice in September 2001, requiring the removal of all caravans and all hardcore and other waste from the site. She appealed against the enforcement notice on limited grounds (there was no deemed application for planning permission at that time) but the notice was upheld with variations. She remained living at the site after the expiry of the time for compliance with the notice in September 2002. It was almost a year later, in August 2003, that she submitted an application for permission to retain the caravan for residential use until July 2007.

The inspector's decision

3. The main issue identified by the inspector was "whether the development represents inappropriate development in the Green Belt and, if it does, whether there are any very special circumstances sufficient to outweigh the harm to the Green Belt" (paragraph 9).
4. The inspector first considered (in paragraphs 10-11) whether it represented inappropriate development. He described the surroundings of the site as "predominantly rural". He said that the mobile home and hard standing were located close to the western boundary of the site and the remainder of the site had the appearance of a paddock; there were a number of small buildings, mainly used as animal shelters; the appellant had described the site as an agricultural holding. His conclusion on this aspect of the matter was:

"11. The mobile home is moderately large and in my view its presence on the appeal site adversely affects the openness of the Green Belt. I also consider that the hard standing adversely affects the openness of the Green Belt albeit in a less obvious way than the mobile home. One of the purposes of including land in Green Belt set out in PPG2 is to assist in safeguarding the countryside from encroachment - I consider that both the mobile home and the hard standing conflict with this purpose even if it can be said that they do not conflict with any of the other purposes set out. In my view the development the subject of this appeal must be regarded as inappropriate development in the Green Belt."

5. The inspector turned to consider the question of "harm to the Green Belt", stating:

"12. Paragraph 3.2 of PPG2 states that inappropriate development is, by definition harmful to the Green Belt. Notwithstanding the sporadic development in the vicinity of the site, I saw that the site's surroundings are generally open. While the hard standing is not particularly apparent viewed from outside the site, the mobile home is very evident viewed from both Trenders Avenue on the west side of the site and Vanderbilt Avenue on the north side, notwithstanding that there is some natural screening. In my view the development the subject of this appeal causes visible harm to the openness of the Green Belt, over and above the harm that arises by reason of its inappropriateness. I consider that the harm to the Green Belt represents demonstrable harm to interests of acknowledged importance."

6. The next question that the inspector addressed was whether there existed any special circumstances to outweigh the harm to which the development would give. The first three paragraphs of his consideration of that question are particularly material:

"13. The appellant argues that there are very special circumstances in this case sufficient to outweigh, for a temporary period expiring in 2007, any harm which the development gives rise to. The circumstances to which my attention is drawn are the appellant's health problems; the educational needs of her daughter Tyler; the needs of the agricultural holding; the regard in which the appellant and her family are held by the local community; and the existence in the locality of a number of other caravans and mobile homes, as well as what are described as 'small pockets of storage-related uses'. It is stated that some of these circumstances were not brought to the attention of the Inspector who dealt with the enforcement appeal.

14. A doctor's letter has been submitted confirming that the appellant suffers from depression, that this condition has been relieved by the stability offered by her residence on the appeal site and that the condition would be exacerbated if she were required to leave the appeal site. I have considered this submission very carefully. However, the letter is very brief and in my view the level of detail provided in it does not adequately substantiate the case that is being put forward. The test set out in PPG2 - that inappropriate development should not be approved 'except in very special circumstances' - is a demanding one. It seems to me that the appellant is unlikely to be alone in having similar or other health problems which might be relieved by establishing a home on open land in the Green Belt. It is therefore incumbent on her to demonstrate that her health problems are indeed of an exceptional nature. A further relevant factor is that I am being invited by the appellant to grant a temporary planning permission. There has been no suggestion that I should grant a permanent permission. It seems to me that there must be considerable doubt as to how effective a temporary permission would be in resolving the appellant's health problems. It is for the appellant to show that very special circumstances exist. In my view the appellant has not established that her health problems constitute very special circumstances.

15. The educational needs of the appellant's daughter Tyler is another matter I am requested to take into account. Submitted in support of this part of the appellant's case is a letter from the headteacher of the primary school attended by Tyler. This states that the need to move schools at this stage of Tyler's education would be seriously detrimental to both her social and educational development. Whether a decision to withhold permission would lead automatically to a need for Tyler to move schools is a matter on which differing views have been put forward by the main parties. On the basis of the evidence available I accept that it is possible that she would. If she did have to move schools I accept that this would be likely to have, to some extent, a disruptive effect on her social and educational development. However, the question I have to consider is whether this amounts to very special circumstances. The educational case put forward is, again, very brief and to my mind without exceptional features. It seems to me that an educational case of this general nature could readily be put forward on behalf of other children in similar circumstances. I am not therefore persuaded that Tyler's educational needs amount to very special circumstances."

7. The inspector then considered the other matters raised under this head. He held that there was no clear agricultural need for the dwelling (paragraph 16). He referred to the fact that the claimant and her family had become an accepted part of the local community, and to letters from local residents testifying to her kindness and neighbourliness, the security advantages of her presence, and the way in which the site was kept in good order; but he held that "these are not considerations which to my mind constitute very special circumstances" (paragraph 17). As regards the presence of other caravans and mobile homes, and also some storage-related uses, in the vicinity, he pointed to the paucity of information about them but stated that "[i]n any case, whatever the circumstances of these developments may be, they cannot in my view justify harmful development on the appeal site" (paragraph 18). He had been provided with summaries of four appeal decisions concerning caravans or mobile homes, but had no information about the circumstances of the cases beyond that contained in the summaries; and he had attached very limited weight to the decisions (paragraph 19). He was not persuaded that there were any conditions that would make the development acceptable (paragraph 20).
8. This led to his principal conclusion:

"21. On the main issue I therefore conclude that the development represents inappropriate development in the Green Belt for which no very special circumstances have been demonstrated sufficient to outweigh the harm which is caused to the Green Belt and that it is in conflict with Green Belt policy."

9. He then dealt briefly with the claimant's representations under articles 2 and 8 of the European Convention on Human Rights. He recognised that his decision represented an interference with her home and family life and with the education of her daughter. But that had to be balanced against the interests of the general population; and "[f]or the reasons given above, I have found that the development the subject of this appeal is seriously harmful to the need to protect the Metropolitan Green Belt and I am satisfied that this legitimate aim can only be safeguarded by the refusal of permission" (paragraph 22).

Issues

10. The claimant advances three main grounds of challenge to the inspector's decision:

(1) that the inspector failed to consider whether the proposed development gave rise to any actual harm to the Green Belt, as opposed to the policy harm by reason of its inappropriateness, and so left a relevant policy consideration out of account;

(2) that the inspector failed to consider a material consideration, namely whether the matters relied on by the claimant, when taken together, were sufficient to amount to very special circumstances which outweighed the harm to the Green Belt; and

(3) that the inspector failed to inquire whether there might be additional evidence or information which might have supported the claimant's case for very special circumstances and so have weighed in favour of the grant of planning permission for the proposed development.

11. I shall address each of those issues in turn, though it is the third issue that requires most attention.

First issue

12. The point here is a short one. Mr Leigh's submission is that, although the inspector dealt expressly, at paragraph 12, with the question of harm to the Green Belt, he did not do enough. He should have particularised how the mobile home and hard standing actually impacted upon the Green Belt in this location, given that the claimant expressly drew his attention to relevant features on the ground and in the area. In the case of inappropriate development in the Green Belt, it is important to identify the extent of the harm (including actual harm as well as harm by definition) to the Green Belt interests, since this has to be balanced against the advantages of the particular development in the particular circumstances: see e.g. the brief references to this in Pehrsson v. Secretary of State for the Environment [1990] 3 PLR 80 at 81 and in Brentwood Borough Council v. Secretary of State for the Environment [1996] 3 PLR 13 at 20. The inspector failed to do this. Alternatively he failed to give adequate reasons in relation to the matter, with the result that the claimant is unable to test his decision for legal error or to see what might be done on site to remedy the problem for the purposes of a further application.
13. In my judgment it is clear that the inspector followed an orthodox approach and, as part of that approach, gave proper consideration to the issue of actual harm, including the extent of such harm. There were three main stages to his analysis: first, whether the development was inappropriate development in the Green Belt; secondly, if so, to what harm it gave rise; and thirdly, whether there were very special circumstances to outweigh that harm. He addressed the second stage in paragraph 12 and did so in terms that showed a clear understanding of the need to assess the actual harm as well as the "policy" harm arising from inappropriate development.
14. Thus, having pointed out first that inappropriate development is by definition harmful to the Green Belt, he went on to identify in addition precisely how the particular development impacted harmfully upon the Green Belt. He referred to the general openness of the site's surroundings, showing at the same time that he was taking into account the existing sporadic development in the vicinity. He specified the locations from which the mobile home was "very evident" notwithstanding some natural screening. He found that this caused "visible harm" to the openness of the Green Belt, over and above the harm arising by reason of inappropriateness.
15. This not only made clear that he had had regard to the question of actual harm, including the extent of such harm, but also amounted to an intelligible and adequate statement of his reasons on the question (as to which, see the summary of principles in South Buckinghamshire DC v. Porter (No.2) [2004] 1 WLR 1953 at para 36). The degree of particularity required in respect of reasons depends entirely on the nature of the issues falling for decision (ibid.). In my view nothing more was required here. I doubt whether much more could sensibly have been said on the subject, which was essentially one of planning judgment; but in any event no more needed to be said.

Second issue

16. The point here is even shorter. Mr Leigh submits that the inspector erred in his consideration of "very special circumstances" by examining and dismissing the various considerations seriatim and failing to consider whether, if taken together, their combined effect was to give rise to very special circumstances capable of outweighing the harm caused by the development. In principle, it is the combined effect that counts: even if considerations do not amount to very special circumstances when taken individually, it is possible for them to do so when taken together. The claimant's submissions to the inspector had looked at the various considerations together. The inspector erred in examining them topic by topic and then moving on without examining the overall position.
17. It is true that the inspector's approach in the decision was to examine in turn each of the considerations relied on, and to explain why in each case he did not regard it as amounting to very special circumstances. It is also true that in expressing in paragraph 21 his conclusion on the issue of very special circumstances he did not state in terms that the considerations relied on amounted "neither individually nor collectively" to very special circumstances sufficient to outweigh the harm caused to the Green Belt.
18. Nevertheless I am unpersuaded that the inspector made the error attributed to him by the claimant. It was plainly sensible to examine seriatim the various considerations relied on by the claimant. Moreover it seems to me, contrary to a submission made by Mr Leigh, that in each case the inspector reached a reasonably clear-cut view that it did not amount to very special circumstances. Against that background, I favour reading the inspector's conclusion in paragraph 21 as one that draws the threads together and looks at the question of very special circumstances as a whole. I accept that, if one were to adopt a strict approach to construction, the paragraph might be taken merely to refer back to the analysis already given - especially because of the use of "therefore" in the first line. But decisions of this sort are not to be read strictly. The reality of it, in my view, is that the inspector was addressing and rejecting the entirety of the claimant's case on very special circumstances. I decline to infer that he compartmentalised the considerations relied on and failed to consider the case as a whole.

Third issue: the written representations procedure

19. To place the submissions on this issue in context, I should first provide some further information about the procedure that was used for the appeal before the inspector. It is governed by the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000. Regulation 3 provides that the Regulations apply where an appellant informs the Secretary of State in the notice of appeal that he wishes the appeal to be disposed of on the basis of written representations. They can also apply where an appeal has started under another procedure but the appellant and the local planning authority subsequently inform the Secretary of State that they wish it to be disposed of on the basis of written representations. In practice parties are encouraged to use the procedure for suitable cases. The relevant criteria include lack of complexity and absence of dispute as to primary facts.
20. In a witness statement on behalf of the First Secretary of State, Mr Stambollouian (Head of the Planning Development Control Division) states that all the planning appeal procedures were revised with effect from 1 August 2000 "to ensure that all the elements of fair, open and impartial decision-making, integral to the quality of the planning appeals process, are retained, and the role of public participation is safeguarded". He refers also to efforts to improve the service offered to users of the appeal system, and in particular to a target that by 31 March 2005 the Planning Inspectorate should be determining 50% of written representations cases within 16 weeks of receipt. In this connection he also emphasises the responsibility of all parties to the appeals process to meet the deadlines and time limits set by the applicable rules and regulations. He states that the written representations procedure is by far the most common procedure and normally offers the quickest, simplest and cheapest way of deciding appeals.
21. Mr Stamboullian's evidence may be contrasted with evidence from the claimant's planning consultant, Ms Bell, that in her experience written representations cases are taking about 48-52 weeks to determine, so that in practice decisions are being made some considerable time after the statutory timetable for the submission of evidence has closed. There is, however, no necessary inconsistency between the two positions, and for present purposes I need do no more than record what each has said.
22. It is unnecessary to set out the actual time limits or other detailed requirements laid down by the Regulations. It is, however, material to note that an inspector has the power to change to a different procedure if he considers that a hearing is required (regulation 3(3)) and that he has the power to request further information (inherent in regulation 7(8), which provides that information submitted outside the time limit may be disregarded unless it has been requested).

Submissions for the claimant on the third issue

23. The claimant's pleaded case on how the procedure should have operated has various strands to it. The summary given in the defendant's skeleton argument, with which Mr Leigh did not take issue, seems to me to capture the essence of it:

(1) in the circumstances of this case, fairness demanded that the inspector not only consider the written representations put before him by the claimant in support of her case that there were very special circumstances which justified the grant of planning permission, but also inquire further of the parties in order to examine whether the claimant's case might be strengthened by virtue of further evidence which had not been drawn to his attention by the parties; and

(2) if the effect of the written representations procedure was to relieve the inspector of that alleged inquisitorial function, then that procedure is, in the circumstances of this case, incompatible with article 6(1) of the European Convention on Human Rights and the court should remedy that breach, either by reading such a function into the procedure pursuant to section 3 of the Human Rights Act 1998 or, failing that, by declaring the procedure to be incompatible with article 6(1).

24. The argument relates to the case advanced before the inspector concerning the claimant's health and her daughter's education. The claimant's planning consultant put in written submissions which advanced a case of very special circumstances and stated that the case "relies on greater understanding of the personal circumstances supported in writing by third parties". As regards the claimant's health, her GP had written:

"Sandra has a strong past history of depression ….

She is on Fluoxetine for depression, and moved to Rayleigh 2½ years ago has purchased some land and sited a mobile home. [S]ince she came into occupation in Rayleigh she had stopped taking Fluoxetine but now it seems attempts have been taken to evict her from her home her depression has reoccurred with vengeance, she is a lady who is trying her best to manage her life and look after two children, her depression will become much worse if she is made to leave her home."

As regards the daughter's education, a letter from the head teacher of the primary school stated:

"Tyler transferred here in September 2002. Initially she was quiet and somewhat lacking in confidence. However, with time and encouragement she settled into a new school very well, making many friends. A small school environment appears to have suited her and during the time she has been at St Nicholas she has made good progress and achieved results above the required standard for her age in the end of Key Stage 1 SAT's taken in May.

I believe that for Tyler to have to move schools at this stage of her education would be seriously detrimental to both her social as well as her educational development."

25. It is clear from the inspector's decision, at paragraphs 14 and 15, that he had full regard to the claimant's submissions and the supporting material, including the letters to which I have referred. No issue is taken with his summary of those letters. What is said, however, is that the material before him gave a strong indication that a refusal to allow the appeal on the basis of very special circumstances would have a very serious impact on the claimant's health and on the development of her daughter, and that in those circumstances it was incumbent on him, if he had any concerns about the adequacy of the supporting evidence, to raise those concerns with the claimant so that further evidence could be adduced. The claimant's planning consultant states that if the inspector had adopted that course "I would have been able to produce more information, depending on the issues raised". She also states that she did not see a need at the time to amplify the material she had submitted to the inspector, but that "[n]ow that I have read the decision letter, I am left with a lurking doubt that perhaps I could have produced relevant material to bolster what I originally believed not to be seriously in dispute".
26. Mr Leigh's submission that fairness required the inspector to inquire further is based on the judgment of the Court of Appeal in Dyason v. Secretary of State for the Environment [1998] JPL 778. In that case the inspector determining an appeal from a refusal of planning permission held a hearing (as opposed to a public inquiry). The applicant appeared in person. His application was for permission to alter existing buildings to provide a building for ostrich breeding. The inspector concluded that neither the current scale of operations nor the future expansion of the business justified a building of the size proposed. The applicant had submitted a business plan and had tried to make the point before the inspector that a building of the size for which permission was sought was indeed required. He intended to call as a witness a Mr Loxam, who was then president of the British Domesticated Ostrich Association. Unfortunately, through a misunderstanding of the procedure, he did not give Mr Loxam a copy of his business plan in advance, and in the event the hearing concluded before Mr Loxam was able to digest the plan and assist the inspector. The applicant contended that in reaching his conclusion on need for a building of the size proposed the inspector had had insufficient regard to the business plan and other documents submitted and had made certain factual errors.
27. Pill LJ, giving the leading judgment, dealt with the background to which I have referred and with the relevant departmental circular concerning hearings. He said that it was clear that at a hearing there was to be no formal cross-examination and the intention was to make the procedure less daunting for unrepresented parties and to eliminate or reduce the formalities of the traditional local inquiry. He continued (at page 784):

"Planning permission having been refused, conflicting propositions and evidence will often be placed before an Inspector on appeal. Whatever procedure is followed, the strength of a case can be determined only upon an understanding of that case and by testing it with reference to propositions in the opposing case. At a public local inquiry the Inspector, in performing that task, usually has the benefit of cross-examination on behalf of the other party. If cross-examination disappears, the need to examine propositions in that way does not disappear with it. Further, the statutory right to be heard is nullified unless, in some way, the strength of what one party says is not only listened to by the tribunal but is assessed for its own worth and in relation to opposing contentions.

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 the need 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 have come to the conclusion that the danger that the required fair hearing did not occur in this case is such that the decision must be quashed. …

I cannot be confident, on a consideration of the decision letter, that there has been sufficient enquiry into the claimed agricultural justification. The reference to the absence of an 'indoor exercise area' on the submitted layout plan might be expected to have been followed by a reference to its presence on the revised layout plan in the business plan, if that document had been considered. The reference to the absence of dispute about available floor space on other English ostrich farms might have been expected to be accompanied by reference to the applicant's case that greater space was in fact required. Findings of 'considerable doubt as to the firm intentions of the appellant' and of the insufficient detail about future expansion read somewhat oddly in the context of a short hearing with no apparent challenge to the business plan and no opportunity, by way for example of a short adjournment, to enable Mr Loxam to assist. An Inspector minded to make such findings against a party might be expected to put the doubts to him and give him an opportunity to deal with them.

I accept of course that the appellant must be expected to tell the Inspector all he wishes to tell him and also that the appellant in this case was mistaken in failing either to supply the business plan to Mr Loxam in advance or to arrange his earlier attendance. I do however conclude that the Inspector, possibly put off guard by the relaxed informality of the procedure he was required to follow, did not provide the fair hearing required by the statute. 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."

28. Nourse LJ agreed with Pill LJ's general observations, though he focused on the inspector's failure to give the business plan the consideration it deserved and to give Mr Loxam an opportunity to read it and then comment on it. Thorpe LJ agreed with the conclusions of the others, though was not so firm in upholding the appellant's criticisms of the inspector.
29. Mr Leigh seeks to derive from Dyason the proposition that there is a legal duty on the inspector, even in an appeal conducted by the written representations procedure, to make inquiry of any party to the appeal regarding a matter that has been brought to his attention and is capable, alone or in conjunction with other material, of influencing his decision. He submits that the requirements of fairness should not differ according to the procedure. The written procedure calls for the same process of testing as does a hearing, and this is not limited to testing the material before the decision-maker. There is an inquisitorial burden on the inspector; and just as at a hearing he should have asked questions which might have resulted in further information being provided, so in the written procedure he should have made inquiry which might have had that result. It is accepted that there is no general duty on the inspector to trawl around for further information, but it is submitted that to have made further inquiry in a case such as the present, where there were points capable of amounting to very special circumstances, would not have been to trawl around.
30. Mr Leigh also relies on R (Singh) v. First Secretary of State [2004] EWHC 2366 (Admin). That was a case in which Collins J quashed a decision of an inspector in an enforcement notice appeal conducted by way of the written representations procedure. Collins J accepted that in such an appeal the onus lay on the appellant to establish his case and to put forward the material necessary to show that the ground relied on was established. He was troubled, however, by the fact that owing to a mistake by the appellant's advisers the appellant had not understood the true nature of the case he had to meet and that in consequence the crucial issue had not been addressed. He found that the inspector ought to have appreciated this. This led him to conclusions expressed in these terms:

"25. … [I]t seems to me, for the reasons I have given, that there was material before the Inspector which ought to have alerted him to conclude that the appellant and those advising him had taken their eyes off the ball ….

26. I am persuaded that overall this appellant, for the reasons I have indicated, has not had from the Inspector's decision a fair determination of the issues …. "

31. A further authority cited by Mr Leigh is R (Vetterlein) v. Hampshire County Council [2001] EWHC Admin 560, for the uncontroversial proposition (at para 68 of the judgment) that "[w]hether a particular procedure is 'fair' will depend on all the circumstances, including the nature of the claimant's interest, the seriousness of the matter for him and the nature of any matters in dispute". Mr Leigh submits that the claimant in this case has a particular interest in that her rights under article 8 ECHR are engaged.
32. If fairness required the inspector to make further inquiry of the parties in the circumstances of this case, then Mr Leigh submits that it was open to him to make such inquiry within the context of the written representations procedure. The possibility exists under the Regulations. Moreover, although the system is driven by targets and timetables, there is in practice a large time gap between the close of the period for representations and the making of a decision, and the opportunity therefore exists in practice for the making of further investigation.
33. In the alternative to his main submissions on procedural fairness, Mr Leigh relies on article 6 ECHR. He submits that if the procedure in this case had involved a hearing or a public inquiry, the inspector's concern about the adequacy of the evidence on very special circumstances would have come out and the opportunity would have existed to provide further evidence. Article 6 imposes the same duty on an inspector in the written procedure as would exist if there were a hearing or inquiry.
34. Mr Leigh advanced this as a bare proposition in his opening submissions, but added to it by the citation of authority in reply. Kraska v. Switzerland (1993) 18 EHHR 188 concerned a decision on an appeal from a decision refusing the applicant an authorisation to practise medicine. It was argued that one of the appeal judges in dismissing the appeal had revealed that he had been unable fully to read the case file and memorial for lack of time. The Strasbourg court held on the facts that the manner in which the appeal court had dealt with the case did not give rise to any reasonable misgivings. Mr Leigh cites the case, however, for the statement of principle at paragraph 30 of the judgment of the Strasbourg court:

"The effect of Article 6(1) is, inter alia, to place the 'tribunal' under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision."

35. The claimant's pleaded case is that the Regulations can and should be interpreted and applied in such a way as to be compatible with article 6; but if that cannot be done, there should be a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998.

Submissions for the First Secretary of State on the third issue

36. For the First Secretary of State, Mr Mould accepts that the written representations procedure is subject to the same general requirement of fairness as other forms of procedure, though he submits that there may be differences in practice as to what fairness requires. He also points out that the parties have a significant measure of choice of procedure (the claimant herself having opted for the written representations procedure in this case) and that, if the written procedure has been adopted, the inspector retains the power to hold a hearing if he considers that one has become necessary.
37. Mr Mould submits that as a general rule it is incumbent on the parties to a planning appeal to produce the relevant material to the inspector. The validity of his decision cannot properly be impugned on the ground that he has not considered evidence that was not before him. Thus the court, in considering a challenge to a decision, will generally confine its attention to the material placed before the inspector and will not admit fresh evidence: Patel v. Secretary of State for Transport, Local Government and the Regions [2003] JPL 342 at paras 17 and 29. At para 29 Collins J stated:

"… Equally, as it seems to me, a failure by an appellant to put material which was available to him and which he could have put before the Inspector but, for whatever reason, did not cannot be relied on. It is indeed for a party to establish his case, and if he fails to adduce material matters then that is his fault. There is no unfairness to him. He has created the situation himself."

That analysis, it is submitted, is consistent with the approach now laid down by the Court of Appeal in E v. Secretary of State for the Home Department [2004] QB 1044 in relation to challenges based upon a mistake of fact in appeals on a point of law against administrative decisions.

38. Mr Mould submits that Dyason is distinguishable and gives no support to the claimant's case. The court in Dyason effectively acknowledged that as a general rule it is for the parties to place relevant material before the inspector. But on the particular facts, where the inspector was faced with an issue as to the adequacy of the business plan and an unrepresented appellant who had misunderstood the procedure but who had an expert present who might be able to provide information directly relevant to that issue, it was necessary for the inspector to play a more proactive role than he did. Thus, although there is no general duty to do more than decide the case on the material presented by the parties, there will be cases which on their facts do require more; and Dyason was one such case.
39. By contrast, it is submitted that there can be no such requirement on the facts of the present case. There was no factual dispute about the claimant's clinical depression or the disruption that would be caused if her daughter needed to move schools. The only issue was the weight to be attached to those matters. There were no special factors which ought to have raised in the mind of the inspector the need to make further inquiries before reaching a decision to dismiss the appeal. Moreover nothing has been placed before this court to suggest that there was in fact further information of which the inspector was unaware or that there was any misunderstanding on his part of the true facts. The highest it is put in Ms Bell's witness statement is in terms of a "lurking doubt" that she could perhaps have produced more material. In truth this was a very simple case and there was nothing more to it than was considered by the inspector.
40. Mr Mould further submits that Singh, like Dyason, is distinguishable as a case turning on its own facts. In that case, as must have been clear to the inspector, the appellant had failed to address the true point, and in the particular circumstances fairness demanded that he should be given that opportunity.
41. As to article 6 ECHR, Mr Mould submits that the written representations procedure is fully compliant with it. In the context of administrative decision-making such as this, article 6 does not require an oral hearing: R (Adlard) v. Secretary of State for the Environment [2002] 1 WLR 2515, at paras 31-32. The intention, as expressed in Mr Stambollouian's witness statement, that the revision of the rules in 2000 should ensure fairness has been achieved. The Regulations governing the written representations procedure empower an inspector to make further inquiry of the parties or to hold a hearing if he considers it necessary. If, contrary to the main submissions for the Secretary of State, there was any unfairness in the particular circumstances of this case, that can be remedied by quashing the decision and having the matter redetermined. The question of a declaration of incompatibility cannot arise.

Conclusions on the third issue

42. In my judgment, and as submitted by Mr Mould, the general rule is that it is incumbent on the parties to a planning appeal to place before the inspector the material on which they rely. Where the written representations procedure is used, that means that they must produce such material as part of their written representations. The inspector is entitled to reach his decision on the basis of the material put before him.
43. That general rule accords with principle, is supported by the discussion in Patel and is consistent with the decision in E v. Secretary of State. It also accords with the acceptance by Pill LJ in Dyason that "an appellant must be expected to tell the Inspector all he wishes to tell him": that was said in the context of an oral hearing, but seems to me to apply with at least as much force in the context of the written procedure. There is nothing inherently unfair in the operation of that general rule.
44. In reaching his decision on the basis of the parties' written representations, the inspector is subject to the inquisitorial burden referred to in Dyason and must subject the material before him to rigorous examination. As Pill LJ observed, "[w]hatever procedure is followed, the strength of a case can be determined only upon an understanding of that case and by testing it with reference to propositions in the opposing case". In general, however, that process does not require anything beyond proper consideration of the material put forward by the parties.
45. There will be exceptional cases where, on the particular facts, fairness requires the inspector to do something more, for example by requesting further information or by departing from the written procedure and holding an oral hearing. The Regulations can accommodate such cases without difficulty.
46. Singh was a case where, on the particular facts, fairness did require the inspector to do something more than reach a decision on the basis of the written representations made by the parties. He ought to have appreciated that the appellant had been misled into failing to address the crucial issue, and it was held that in the circumstances there had not been a fair determination of the issues.
47. Dyason, which involved a hearing rather than the written representations procedure, is another case where the finding that the inspector ought in fairness to have done more than he did was based on the particular facts. The court was evidently concerned that the inspector may not have given sufficient consideration to the appellant's business plan and that he should have put his doubts to the appellant and given him an opportunity to deal with them, or should have given the appellant an adjournment to allow his expert an opportunity to consider the business plan and comment on it.
48. Both Singh and Dyason are therefore cases turning on their own facts and are readily distinguishable. Neither of them casts doubt on the general rule to which I have referred.
49. As to the present case, I accept Mr Mould's submissions that there was nothing in the circumstances that called for a departure from the general rule. The representations made by the claimant's planning consultant explained the reliance placed on the claimant's health problems and her daughter's education, and the supporting evidence was adduced. It was for the inspector to assess that material in the normal way and to decide whether very special circumstances existed to outweigh the harm caused by the development.
50. It was, as the inspector said, incumbent on the claimant to demonstrate that her health problems were of an exceptional nature so as to constitute very special circumstances. In his view she had failed to do so - indeed, I think it clear from paragraph 14 of the decision that in his view she fell well short of doing so. This was an ordinary process of evaluation and weighing. The inspector commented, as he was entitled to do, that the GP's letter was very brief and that the level of detail provided in it did not adequately substantiate the case being put forward. That did not give rise to any requirement to make further inquiry as to whether further detail was available and might assist the claimant, or to indicate to the claimant that he had concerns about the adequacy of the material provided. There was no special factor that made it unfair for him to proceed on the basis of the material before him.
51. The same applies to his consideration of the case concerning the daughter's education. Here too he gave proper consideration to the representations that had been made, commented appropriately that the case put forward was very brief and without exceptional features, and reached a judgment on the material before him. Again there was no special factor that made it unfair for him to proceed on that basis.
52. A striking feature of the claimant's case is that, even now and with the benefit of the inspector's detailed reasoning, the claimant has not pointed to the existence of any further material that could actually have been put forward if the inspector had given her an opportunity to do so. Her planning consultant asserts that she would have been able to produce more information, but it is no more than an assertion - and an assertion weakened by the additional reference to a "lurking doubt" that "perhaps" she could have produced material to bolster the case.
53. In a planning challenge based on procedural unfairness, it is for the claimant to show that there has been real unfairness causing substantial prejudice. For the reasons I have given, I take the view that there has been no unfairness at all. But even if I had taken the view that the inspector ought to have made further inquiry of the claimant, his omission to do so would not lead to the quashing of the decision in circumstances where there is nothing to show that the making of such further inquiry might have led to a different outcome. The complete absence of evidence to show that it might have made a difference would at the very least cause me to refuse relief in the exercise of my discretion.
54. My conclusions on the claimant's primary case are equally dispositive of the argument based on article 6 ECHR. It has not been shown that the written representations procedure is incompatible in any way with article 6. If, as I have held, the ordinary rules of procedural fairness did not require the inspector to make further inquiry of the parties, then no such requirement can be derived from article 6. The article adds nothing of substance to the claimant's case.

Overall conclusion

55. For the reasons I have given, the claimant fails in relation to each of the main issues advanced. The written grounds contain some additional arguments but I see nothing in them of any significance. Accordingly the claim must be dismissed.