Mr Justice Lindblom:
Introduction
- This is an appeal under section 289 of the Town and Country Planning Act 1990, in which the appellants, Craig and Lorraine Pitblado (the first and second appellants) and Amy MacGregor and Mark Bullen (the third and fourth appellants), challenge the decision of an inspector, Mr Christopher Hoult, who was appointed by the first respondent, the Secretary of State for Communities and Local Government, to determine their appeals against enforcement notices issued by the second respondent, Dacorum Borough Council.
- The Inspector's decision letter was issued on 1 October 2010. Permission to appeal and an extension of time for the lodging of the appeal were granted by Ouseley J on 11 May 2011. When he granted permission Ouseley J directed that the Council was to attend the hearing of the appeal and was to file and serve evidence in the form of a witness statement of Mark Staincliffe, its officer responsible for the handling of the enforcement notice appeals, and that Mr Pitblado was also to attend and to be available for cross-examination if this turned out to be necessary.
- When the section 289 appeal eventually came before me – on 9 November 2012 – Mr Jonathan Powell appeared for Mr and Mrs Pitblado, and Ms Lisa Busch for the Secretary of State. Mr Powell told me he was now instructed only for Mr and Mrs Pitblado. Ms MacGregor and Mr Bullen were no longer actively involved in the proceedings, and they were neither present nor represented. Mr Pitblado was in court. So was Mr Staincliffe. He had produced a witness statement, as Ouseley J had ordered, but took no part in the hearing before me. No application was made to me either for leave to call any witness or for leave to cross-examine. Neither side urged me not to admit late evidence. I had before me the witness statements of Mr Andrew King, the appellants' planning consultant, (dated 2 December 2010 and 12 December 2011), Mr Pitblado (dated 22 March 2011 and 9 December 2011), Mr Staincliffe (dated 2 June 2011), and the Inspector (dated 10 May 2011 and 31 October 2012).
The issues
- The appeal raises two main issues:
(1) whether the Inspector, in determining the appellants' appeals, adopted a procedure manifestly unfair and prejudicial to them; and
(2) whether the Inspector failed to take into account as a material consideration the appellants' efforts to ascertain the planning status of their properties.
Background
- Mr and Mrs Pitblado live in a dwelling known as "Gable End" at Threefields (No.1), Sheethanger Lane, Feldon, near Hemel Hempstead in Hertfordshire. Ms MacGregor and Mr Bullen lived in a dwelling known as "Birch Cottage" at Threefields (No. 5). Gable End and Birch Cottage are two of five dwellings in a terrace. The other three are called "Meadow View" (Threefields (No. 2)), "April Cottage" (Threefields (No. 3)) and "Woodside" (Threefields (No. 4)). Another building, known as "The Old Battery Hen House", stands on the same site.
- On 26 February 2010 the Council issued an enforcement notice alleging a breach of planning control at Gable End, which was described in the notice in this way:
"Without planning permission:
1. The construction and erection of a new dwelling and creation of hard standing, on the land hatched in blue on the attached plan.
2. The construction and erection of a boundary wall, exceeding two metres in height, shown edged yellow on the attached plan.
3. [T]he material change in the use of the land from agricultural land to a residential garden, shown hatched in green on the attached plan".
The requirements of this notice were:
"
(i) Demolish the dwelling/hard standing and remove all materials used in their construction from the land.
(ii) Demolish the boundary wall and remove all materials used in their construction from the land.
(iii) Cease using the land (shown hatched in green) as a residential garden.
(iv) Cease mowing the land (shown hatched in green) as residential garden.
(v) Remove all residential items and paraphernalia from the land."
The time for compliance with the requirements of the notice was one year from the date when it took effect.
- The Council issued an enforcement notice alleging a breach of planning control at Birch Cottage, also on 26 February 2010. The breach of planning control alleged in this notice was described in this way:
"Without planning permission:
1. The construction and erection of a new dwelling and creation of hard standing, on the land hatched in blue on the attached plan.
2. [T]he material change in the use of the land from agricultural land to a residential garden, shown hatched in green on the attached plan".
The requirements of this notice were:
"
(i) Demolish the dwelling/hard standing and remove all materials used in their construction from the land.
(ii) Cease using the land (shown hatched in green) as a residential garden.
(iii) Cease mowing the land (shown hatched in green) as a residential garden.
(iv) Remove all residential items and paraphernalia from the land."
As in the notice issued for Gable End, the time for compliance with the requirements of this notice was one year from the date when it took effect.
- On the same day the Council also issued enforcement notices for each of the other dwellings, in the same terms as the notice for Birch Cottage.
- The development enforced against was the result of alterations that had been carried out to the building comprising the terrace of dwellings. At least some of this work had been done by a property development company called Thorne Barton Estates Limited, which owned the building.
- The site has a long and somewhat complicated planning history. This was summarized in paragraphs 6 and 7 of the Inspector's decision letter:
"6. … The single-storey building from which the terrace has been formed dates back to the 1930s. An approval given by the then local Council in 1935 was for the "re-building of a laboratory building" and the plans for that approval formed part of the evidence before me. In the 1960s, it was converted to provide three flats. In the 1980s, in the flat corresponding to the dwelling now known as "Woodside", the roof space was converted to provide rooms at first floor level.
7. The notices follow unauthorised building operations of which the Council first became aware in 2007. Threefields and its attendant land and outbuildings were sold in lots in 2006. The building was described in the sales particulars as "the cottages". It was purchased, along with Threefields and other land and buildings, by Thorne Barton Estates Ltd ("TBE") … . Lengthy correspondence between the Council and TBE ensued prior to the issue of the notices, which were served on the, by then, occupiers of the dwellings. The appeals are made in their name but have been submitted by a single agent who represented both them and TBE at the hearing. He confirmed at the hearing that the appellants do not contest the requirement to reinstate to agriculture the land used as rear gardens to the dwellings.".
- There were appeals against all of the notices. The Inspector allowed the appeals against the notices relating to Woodside, April Cottage and Meadow View, and he quashed those three notices. He dismissed the appeals relating to Gable End, Birch Cottage, and The Old Battery Hen House.
- The appeals against the enforcement notices relating to Gable End and Birch Cottage were brought on the grounds set out in paragraphs (a), (f) and (g) of section 174(2) of the 1990 Act, which are:
"
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted … ;
…
(f) that the steps required by the notice to be taken … exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed".
- The proceedings before the court concern only the Inspector's handling of the appeals relating to Gable End and Birch Cottage under ground (g).
- It is common ground, as it was before the Inspector, that the development against which the Council had enforced was carried out without planning permission. Each of the appellants had some connection with Thorne Barton Estates Limited. Mr Pitblado is, or was, employed by that company as a builder and site manager, but seems not to have been involved in the development on the appeal site. Ms MacGregor is the daughter of a director of the company; Mr Bullen was her partner. Gable End had been sold by Thorne Barton Estates Limited to Mr and Mrs Pitblado, who, with a mortgage, acquired their interest in it on 10 May 2007. In their appeal under ground (g) they sought a period of least three years in which to comply with the enforcement notice. Birch Cottage had been let to Ms MacGregor and Mr Bullen under an assured tenancy agreement, which was due to expire in May 2012. In their ground (g) appeal they asked for the period for compliance to be extended until 15 May 2012. The Secretary of State says therefore that these proceedings are academic so far as they relate to Birch Cottage; Ms MacGregor and Mr Bullen have already achieved even more than they sought in their appeal under ground (g).
The hearing
- The appellants were content for their appeals against the enforcement notices to go to an informal hearing. The hearing took place on 14 and 15 September 2010. All of the appellants were jointly represented at it by Mr King. In the statement he had submitted to the Planning Inspectorate on their behalf he set out his professional qualifications. He was a member of the Royal Town Planning Institute "with 33 years professional experience in both the private and public sectors". In his statement he described the planning history of the site and then devoted a section to each ground of the appeals. He made his submissions on the ground (b) appeals in section 3, and put forward his argument on ground (g) in section 5.
- In his first witness statement Mr King says this:
"The appeal was not conducted by way of a formal public inquiry and the less formal hearing procedure was chosen. Neither the Council nor the Appellants were represented by lawyers and I was the sole representative of the Appellants since no complicated legal or procedural issues appeared to be at issue between the parties. The procedure was chosen by the parties bearing in mind the issues which fell to be decided.".
- Mr King goes on to say that "the issues in dispute were formulated by the grounds of appeal in the notices of appeal and more fully in the statements prepared and exchanged by the parties". He describes the issue in the appellants' ground (g) appeal in this way:
"A final issue arose under "Ground (g)" of the notices of appeal, that if the notices were upheld, further time should reasonably be allowed for the steps required by the notices to take place; the demolition of the buildings. I argued that the period of one year provided in the notice was insufficient bearing in mind that 5 households would have to find alternative housing. The Appellants who were owners/occupiers were unaware that the properties in which they were acquiring interests did not have the benefit of planning permission. Each such Appellant had taken legal advice in the usual way in acquiring their interests and had solicitors to undertake the necessary searches and conveyancing. In order to acquire new properties in which to live, the owner/occupier appellants would need to seek redress for deficiencies in conveyancing procedures which had allowed them to acquire interests in houses which did not benefit from planning permission. This argument is set out in my appeal statement which was exchanged with the Council and delivered to the Inspector in advance in accordance with the hearing procedure rules."
- In paragraph 3.1 of the statement Mr King submitted to the Inspectorate he said this about the appeals on ground (b):
"These relate to [nos.] 2, 3 and 4 Threefields. As previously stated it is common ground between the parties that these properties have existed as separate dwellings for many years. In the case of [no.] 3 this is confirmed by the results of the local search carried out by the purchasers solicitors in March 07 and enclosed in appendix 4." [my emphasis].
- The submissions on ground (g) in section 5 of Mr King's statement were these:
"5.1 The breaches of planning control the subject of the Notices were not perpetrated by the owners of nos. 1-4 Threefields who each have mortgages or the tenant of no. 5 Threefields who is the subject of an assured tenancy agreement which does not expire until May 2012.
5.2 They purchased or tenanted the properties in good faith with the assistance of their solicitors who if the enforcement appeals are dismissed will need to put their respective indemnity insurers on notice of the claims to be made by the purchasers and their mortgagees. Please note that negligence by a solicitor is only relevant once it causes a loss.
5.3 It is highly unlikely that one year will be sufficient time to conclude the ensuing litigation associated with determining where and with whom the financial culpability lies and the levels of compensation to be paid.
5.4 Until these payments are received by the families they may find it difficult to make alternative housing arrangements particularly if they are still making the monthly mortgage repayment and paying rent on another property.
5.5 There is also the levels of stress and anxiety to which they are being subjected to be taken into account.
5.6 It is therefore submitted that in this particular case for humanitarian reasons the time to comply with the Notices should be a minimum of 3 years in the case of nos. 1-4 Threefields and until May 15th 2012 in the case of no. 5 Threefields.
5.7 Alternatively and in respect of nos. 1-4 Threefields the time scale for compliance might be linked to the resolution of their respective claims.
5.8 Please note that details of the appellants' mortgages and the tenancy agreement will be available at the hearing if required.".
- In its statement for the hearing, prepared by Mr Staincliffe and dated May 2010, the Council said this about the ground (g) appeals (in section 10):
"10.1 The Council consider twelve months to be sufficient time to carry out the requirements of the enforcement notice. When determining the time period for compliance with the notice, consideration was given to the means of removal and demolition. Considering the size of the structure and means of construction it was considered that twelve months was sufficient time to demolish and remove all materials from site.
10.2 The appellant is of the opinion that three years are required for the requirements of the notice to be met because of potential litigation. The Council are of the opinion that three years is an excessive period of time and requests that the inspector does not vary the period of time in which to comply with the requirements of the notice.".
- None of the appellants came to the hearing. Mr Powell said in his skeleton argument that, to enable the hearing before the Inspector to be conducted dispassionately, it was agreed with the Council that they would not attend. Mr Powell said this was because "the presence of owners and occupiers who were liable to lose their homes would not assist in the resolution of the technical issues". That contention rests on Mr King's evidence in paragraph 9 of his first witness statement:
"In preparation for the hearing, procedural matters were agreed with the Council to facilitate the hearing. Mr Staincliffe at the Inquiry [sic] confirmed that it had been previously agreed that the attendance of the Appellants in person would serve no useful purpose and lead only to increased stress for the families concerned. Their attendance would also be likely to disrupt or lengthen the proceedings, for which only two days had been allocated. Their attendance might also compromise discussions on the planning merit of the appeals between the parties. As a result, the hearing was able to be held in a small meeting room. This confirmation was given when the Inspector commented on the absence of the Appellants.".
But that version of events is not accepted by the Council. In paragraph 13 of his witness statement Mr Staincliffe says that, when discussion at the hearing turned to the enforcement notices relating to the five dwellings,
"… [the] Inspector said he was surprised that no owners were at the hearing considering what was at stake. Mr King explained that he did not think it was necessary for them to attend, but I can not recall what reasons he gave. However, I can confirm that there was no agreement between Mr King and myself that his clients should not attend (as stated in Paragraph 9 of the Witness Statement of Andrew King dated 21/12/10 [sic]).".
- When he opened the hearing the Inspector handed the parties a document entitled "AGENDA FOR DISCUSSION". This indicated the matters he wanted to be discussed at the hearing, under the headings of each of the grounds of the appeals. Under the heading "6 Ground (g) (dwellings only)" the document identified two matters for discussion:
"
- Background – position on occupiers' litigation.
- Relevance of litigation to period for compliance.".
- Mr Pitblado attended both of the Inspector's site visits. According to the appellants he told the Inspector at the site that he did not know there was no planning permission for the development when he and his wife bought Gable End. The appellants also say that he provided for the Inspector a copy of his solicitor's invoice charging for the relevant searches before the sale was completed.
- Mr Pitblado's evidence about his conversation with the Inspector at the site is in paragraph 3 of his first witness statement:
"…
b) I was also asked what knowledge I had of the planning history of the property that I was going to purchase. I told [the Inspector] that I had no real information. I confirmed that I was relying upon my solicitors to make all necessary investigations into the purchase. The position as I recall was that I was given a Contract by Thorne Barton, which I think had been prepared by Mr Turner, to sign, so that they were able to use this to satisfy the Bank that contracts were in place for further funding to complete the development. This was some time before the final completion, which was in 2007. I am not sure that I spoke to Mr Turner at this point. Subsequently, however, I recall speaking with Mr Turner when he was with Hilliers and asking him to ensure that all planning matters were correct and whether there was any reason why the transaction could not proceed. As can be seen from the bill, which is exhibited under 'CGP1', there is a charge made for a Local Authority Search. I was expecting Mr Turner, who I have known for a number of years and used on a number of occasions, to make the necessary investigations and to inform me if there was any difficulty. He did not do so, and I therefore proceeded to complete the purchase on the understanding that planning issues did not exist. I would also mention that I told the Inspector that I had bought a number of properties from Thorne Barton over a period of years. I first got to know Mr MacGregor a director of Thorn[e] Barton when I was running a café in Berkhamsted some 15 years ago, and indeed we bought our first property through him. Since that time we have probably bought properties through Thorne Barton some four or five times, on each occasion without any difficulty and I had therefore the utmost faith in him and in the company.".
In quoting that passage I have underlined the parts of it that I understand to be Mr Pitblado's summary of what he said to the Inspector.
- The document exhibited by Mr Pitblado as "CGP1" is a copy of an invoice from Hilliers HRW Solicitors, addressed to himself and his wife and dated 2 May 2007, which seeks payment of professional charges relating to the purchase of "Cottage 1" at "Threefields", among them a charge for "making all necessary searches and preliminary enquiries".
- In his first witness statement Mr King provides this account of what happened:
"10. When the inspector asked about the relationship between the owners and tenants with the developer of the land, Thorne Barton Estates Limited, both Mr Staincliffe and I merely confirmed … the personal business connections as agreed matters of fact.
11. Of the 5 occupiers of the houses each had some connection with the owner/developer TBE. …
12. The Inspector asked if … Mr Pitblado could attend because he seemed to find it difficult to understand why as a site manager for Thorn[e] Barton Estates Mr Pitblado was unaware of the lack of planning permission and building regulations approval. It was therefore arranged for him to be present at the site visit.
13. I do not recall any submissions made or arguments put on behalf of the Council, that owners or tenants of the buildings had acquired their interests from … the developers in the knowledge that there was no planning permission. I would have been surprised if such allegations had been raised as this question had not been raised before between the parties and it would have been a somewhat startling suggestion. It was an issue which solely originated with the Inspector and I was surprised to see that he had made findings on the point in the Appeal Decision at paragraph [37].
14. Following the hearing at the Council's offices, I again met with the Inspector on site together with Mr Staincliffe and Mr Pitblado for the site visit. The Inspector spoke with Mr Pitblado. In addition to responding to some factual questions on internal layout, I recall Mr Pitblado informing the Inspector that whilst he had rented the neighbouring "Old House" from Thorn[e] Barton Estates during the course of the building works on the terrace he was never employed on this development but was busy site managing a different project elsewhere. Mr Pitblado then produced an invoice from the solicitors who acted for him in the purchase of his house, No.1, which showed he had been billed for a local authority search fee."
- In the first of his two witness statements the Inspector says what he recalls of events at the hearing:
"9. The substance of the Applicants' joint case on this ground, as it was put to me by the agent who represented them, Mr King, was (and I paraphrase) that they were innocent home-owners caught up in a planning issue which was not of their own making and that the period for compliance with the requirements should be extended to allow them to pursue litigation against solicitors who had carried out the conveyancing process in connection with their purchase of the properties.
10. In the agenda for the hearing which I circulated before opening, I raised, under Item 6 (headed "Ground (g) appeal") two bullet points for discussion: (1) the position on the occupiers' litigation; (2) the relevance of the litigation to the period for compliance.
11. My notes of the discussion record that, under this heading, Mr Staincliffe of the [Council] raised a query as to whether those who occupied the dwellings had had some involvement in the unauthorised works. [The Council] also queried whether any of them worked for [Thorne] Barton, the developers who carried out the unauthorised works. It sought from Mr King details as to the circumstances of searches carried out. It wondered whether they were "family and/or friends" of the developers. It was suggested that Mr Pitblado had some involvement in the works.
12. By way of digression, Mr Pitblado did have detailed knowledge of the works carried out because his evidence at the two site visits which took place as to how the middle three dwellings had been constructed was key to the appellants' success on the ground (b) appeals and the quashing of the notices relating to them.
13. I asked the Applicants' representative, Mr King, what the position was regarding litigation. My notes record that he responded that "DT" (my shorthand) was acting for the purchasers against the solicitors who carried out the conveyancing – that much was known. I cannot now recall who "DT" refers to but this may not be material. The Council went on to say that it sought information regarding search enquiries on the properties prior to its investigations in relation to enforcement action. It knew that solicitors for [Thorne] Barton also acted for Mr Pitblado. No searches were recorded under his name – there was evidence of two other searches.
14. The Council expressed surprise that, although it highlighted to occupiers the possibility of enforcement action leading on from its investigations in correspondence with them, no queries in relation to this were raised by any of them. When all these matters were put to Mr King, he responded that he could only surmise that the conveyancing process might have been rushed – it was the height of the boom in the property market at the time.
15. In the course of these discussions, the Council expressed surprise that none of the occupiers had attended the hearing. I expressed surprise also. This is at odds with the statement … that Mr King had agreed their non-attendance in advance with Mr Staincliffe, for all that he might have explained to him how the arrangements had been agreed in advance with the occupiers. Mr King did say at the hearing, as I recall, that he had had the Applicants' agreement that he would represent them at the hearing, as well as the developers, but that is not the same as saying … that an "agreement on procedure" with the [Council] was explained to me. The … suggestion … that the connection of the occupiers to the developers was made clear to me as background information is also at odds with what occurred. No mention of it was made in any statement in advance of the hearing – it emerged as a result of discussions at the hearing which originated from concerns expressed by the [Council].".
The Inspector also rejects the contention that the "state of knowledge" of the appellants was not an issue between them and the Council:
"16. I do not accept the statement … that the Council did not wish to question the occupiers about various matters. It was the Council who initially raised concerns about their connection with the developers in the discussion on this ground of appeal and I took from those expressions of concern that it had doubts as to what the occupiers might have known about the planning position. For these reasons, I do not accept the claim … that the state of knowledge of the occupiers was not an issue between the [appellants] and the [Council].".
- The Inspector recalls what happened at the second site visit:
"17. … In conducting the visit, I was, as is normal in such visits where they are carried out in connection with a hearing, able to leave the hearing open and hear evidence. Though Mr Pitblado was in attendance to help with the details as to the process of construction of the dwellings, at Mr King's instigation, he gave some evidence as to his own involvement as a purchaser of one of them.
18. My notes of the visit record that Mr Pitblado said that he did not project-manage the works but was aware of them, as he was living at the time in "Threefields", the main dwelling on the original estate. He said that he purchased Gable End through [Thorne] Barton in May 2007 and that the other properties were sold through "word of mouth". He went on to say that no check was made as to whether it had planning permission, that he left that to his solicitors and that he didn't check with [Thorne] Barton colleagues. I do not recall his producing a solicitors' invoice – it is not a document that was formally put in at the hearing. It does not appear on the list of such documents at the end of the decision. If local authority search fees were itemised on it, this is at odds with the Council's evidence from the earlier discussion that no searches were entered under his name.".
- The Inspector emphasizes that although he raised with the parties the issue of what the appellants might have known about the planning status of the dwellings, he did not do this "entirely of [his] own volition". In his agenda for the hearing he had invited comments on "the circumstances of the litigation". The Council took the opportunity to "raise its concerns about the possible involvement and/or knowledge of the [appellants] in the unauthorised works". And, says the Inspector, in his judgment Mr King's "response to these concerns was unsatisfactory". Thus he treated the evidence in the way in which it was put to him.
- Mr Staincliffe's evidence about what happened at the hearing – so far as it is relevant to the issues I have to decide – comes in these passages of his witness statement:
"22. I do recall that I informed the … Inspector that the whole situation was not as simple as made out by Mr King and went on to explain the facts recently established by the Council. These facts were:
1. The properties were not offered for sale on the open market.
2. The link established between most of the owners of the properties and the developer, Thorne Barton Estates.
3. The properties did not have building regulations approval.
23. The above points were confirmed by Mr King.
24. I expressed my surprise that all owners and occupiers, who faced the real danger of losing their homes, were using the same planning consultant as Thorne Barton Estates and chose not to attend the hearing. I directed the … Inspector to … the Planning Contravention Notices sent with the Appeal Questionnaire … . I expressed my opinion that the above indicated that Thorne Barton Estates and Mr King had full knowledge of the Council's enforcement investigation. I also expressed my opinion that the owners and occupiers must have known that they did not have planning permission for the works taking place.
25. I mentioned that if this was my property I would have difficulty not holding Thorne Barton Estates partly responsible for the situation and would therefore want to be represented by someone with no affiliation to Thorne Barton Estates. Four of the current occupiers gave no evidence so it was not possible to get a response to this statement. However, I did push the point that [in] the absence of any evidence to say otherwise it was my opinion, on the balance of probabilities, the owners must have been aware or partly aware of the risk in purchasing or living in these properties. I also stated that it was a possibility that the other owners did not attend to avoid such questions.
26. I recall that the … Inspector invited Mr King to make comment and provided him with an opportunity to respond to the points made by me. Paragraph 11 of [Mr King's witness statement of 2 December 2010] would appear to be an accurate account.".
As to the site visit on the following day Mr Staincliffe says this:
"31. As the merits of the case relating to ground (g) were discussed the previous day I don't recall the … Inspector, Mr King or I asking Mr Pitblado any further questions regarding the merits of the planning appeal or his knowledge of no planning permission having been granted for the construction of the dwellings.
32. It is also prudent to mention that I do not recall Mr Pitblado providing a copy of an invoice … to the … Inspector. If a copy had been given to the … Inspector a copy would also have been given to me and it would have been placed on file. It would also have been noted on the final page … of the appeal decision.".
- In his second witness statement Mr Pitblado refers to the Inspector's visit to the site on the first day, while the hearing was still in progress. He says that the Inspector "did not challenge [him] directly on whether [he] had known all along about the alleged absence of proper planning permission", and that he does not remember Mr Staincliffe asking him any questions during that site visit or the one that took place the following day. Apparently referring to the same site visit, Mr Pitblado says that he was reminded that Hilliers had carried out a local authority search, which he believed had confirmed "that the appropriate planning permissions were in place". He adds:
"I had not previously realised the significance of this. Whilst the Inspector, Mr King and the planning officers were gathered around my kitchen table considering plans, I searched through a drawer and found the invoice attached as exhibit CP-6. I passed the invoice to Mr King who appeared delighted to be able to confirm to the Inspector that such a search had in fact been carried out. Mr King drew the Inspector's attention to the invoice and I have no doubt that the Inspector saw it. The Inspector kept his head down and made notes, which I assumed were related to the production of the invoice. Because I had not intended to be present at the hearing and because I did not expect my knowledge of planning issues to be relevant, it had not occurred to me to make copies of the invoice. Since I only had the original in my possession, I retained the invoice but I did not consider this to be a problem because I thought that the Inspector had made his own notes. I am very surprised to read that the Inspector does not recall the invoice having been produced at all … and that it is absent from the list of documents. I can only assume that this is because no copies were available. Given that no duplicates were available, it is understandable for Mr Staincliffe to state … that he "does not recall [me] providing a copy of an invoice" since I was unable to do so. However, I would have ensured that copies were provided to the Inspector and Mr Staincliffe as a matter of urgency had I realised that the invoice would otherwise have been ignored.".
Mr Pitblado goes on to say that by the end of the site visit he was relieved because he believed he had "eliminated any suggestion that [he] was somehow responsible for the predicament [his] family found itself in" and that he "had demonstrated to the Inspector that [he] had taken all steps that a layperson could reasonably be expected to take in order to verify that [his] investment in the Property was sound".
- In his second witness statement Mr King acknowledges that at the hearing the Inspector "indicated his wish to speak directly to Mr Pitblado", and continues:
"… The Inspector appeared satisfied that Mr Pitblado should attend the Site visit, rather than the formal session. Once all attendees had arrived at Gable End, Mr Pitblado exposed the brickwork inside his kitchen during that session so that the Inspector and or the Council could satisfy themselves that the brickwork was original. It was during this Site visit that the Inspector asked Mr Pitblado about his involvement in the construction of the Site and his knowledge of the planning position prior to his purchase of Gable End. I find it curious that Mr Staincliffe should state (at paragraph 18 of his statement) that he and I were "provided with an opportunity to ask Mr Pitblado questions". This suggests a formal procedure was followed, which was not the case. Each attendee was able to speak freely throughout the hearing process, I was not aware of any defined point at which questions were invited.".
- Mr King says that at the second site visit Mr Pitblado "broke away from the conversation and returned with an invoice from his conveyancing solicitor". He goes on to say this:
"… Had I known that the ground (g) [appeal] was to be contested on the grounds of complicity (and had Mr Pitblado found the document prior to the hearing) it would have been formally submitted as evidence beforehand. However, I had already given evidence to the effect that Mr Pitblado had instructed conveyancing solicitors, who had apparently carried out local authority searches; this was set out at paragraph 3.1 of my appeal statement … . I had not anticipated that the integrity of the Appellants would be called into question and so had obtained only cursory instructions relating to the conveyancing process they had pursued. From the enquiries made by the Inspector at the hearing, I had begun to suspect that the Inspector believed that Mr Pitblado bought Gable End in full knowledge of the lack of planning permission. I was therefore reassured when Mr Pitblado produced the invoice which (to my mind) proved that he did no such thing. My initial conclusion, upon noting that Mr Pitblado had indeed been charged for a local authority search, was that the search provider and/or the local authority itself had made a mistake. I placed the invoice in front of the Inspector and am sure that he saw it; I said words to the effect that "they [meaning Hilliers] charged him for the search". I formed the opinion that, when the Inspector did not ask questions about the invoice, he was satisfied as to Mr Pitblado's ignorance of the lack of planning prior to and during his purchase of Gable End. I believed that the Inspector had noted this point. Had I realised that this would be contested, I would have pressed the point at the time and would have arranged for copies of the invoice to be provided of the Inspector and the Council. Having re-read paragraph 13 of the Inspector's statement to this court, he refers to Mr Staincliffe's assertion that the Council had no record of a local authority search having been carried out in Mr Pitblado's name. Given this conflicting evidence, I am surprised that the Inspector did not wish to refer to the invoice in making his decision.".
Mr King goes on to say that he "cannot accept that the [Inspector's] agenda makes it clear that the integrity of the Appellants was in question". He says that if the Inspector had prepared his agenda with the intention of challenging the appellants as to the "authenticity" of their ground (g) appeals, "a full inquiry would have been a more appropriate mode of appeal". The alternative, he suggests, would have been that when the Inspector had been presented with Mr Pitblado's solicitor's invoice he "could have adjourned the hearing and reconvened as an inquiry which would have allowed Mr Pitblado to call witnesses to corroborate his ignorance [of] the planning situation". Mr King says the Inspector formed conclusions about the integrity of the appellants without "any formal cross-examination", which, he says, is "unsatisfactory".
- In his second witness statement the Inspector confirms that he "did not receive any invoice from Mr King or Mr Pitblado or anybody else during the site visit". He also points to an inconsistency between the version of events given by Mr Pitblado and that given by Mr King. He observes that in his second witness statement Mr Pitblado is clearly referring to the first site visit when he says he found the invoice and passed it to Mr King, who in turn showed it to him, the Inspector. This, says the Inspector, is at odds with what Mr King says in his second witness statement and also with his own notes of the discussion he had with Mr Pitblado, which, he says, happened at the second site visit after the hearing had concluded.
The Inspector's decision letter
- The Inspector considered the ground (g) appeals in paragraphs 37 and 38 of his decision letter:
"37. The appellants argue that the dwellings were purchased or rented by people with no knowledge of the circumstances of their erection. However, in the course of the hearing, it became evident that none were purchased on the open market and that most occupiers had some form of connection to TBE, the developers. Of the occupiers of Gable End and Birch End [sic], one is employed by them and one is related to a director of the company. I cannot accept that they will not have known, or tried to establish, whether planning permission was sought or obtained. I consider it more likely on the balance of probabilities that they will have knowingly exposed themselves to the financial risks involved in occupying them without such a permission in place. I therefore attach little weight to the view that the compliance period should allow for litigation over their purchase or for tenancy agreements to run their course.
38. I therefore approach these appeals from the point of view of whether the period is too short bearing in mind the requirement to demolish the dwellings and (in the case of Gable End) the boundary wall and remove materials from the site. The one year period specified by the Council should provide ample time to carry out these works and I therefore find no basis on which to conclude that it should be extended. The ground (g) appeals therefore fail.".
- In his first witness statement the Inspector responds to the suggestion that there is an ambiguity in the fourth sentence of paragraph 37 of his letter:
"21. As to the claimed error of fact, in the sentence with which offence is taken, "not" should be taken as applying to both "have known" and "tried to establish". I say that I cannot accept that they will (a) not have known, or (b) not tried to establish, whether planning permission was sought or obtained. That is the only sensible way in which it can be read. Why would I say that I cannot accept that they would have tried to establish the planning position, when the basis for my attaching little weight to their ongoing litigation is that I consider that they ought to have had some inkling of it? The claim now made, that they in fact did try to establish the position, is not therefore at odds with what I say and no error of fact has occurred.".
Issue (1): unfair and prejudicial procedure?
Submissions
- Mr Powell submitted that the procedure adopted by the Inspector in determining the ground (g) appeals was patently unfair to the appellants. Whether any of them knew that their dwellings lacked the necessary planning permission at the time when they acquired interests in them was not put in issue by the Council during the hearing. The parties had agreed before the hearing that the appellants' cases would be presented in their absence by Mr King. It was clear at that stage that the Council had no wish to put questions to any of them. For the Inspector to hand out an agenda identifying the two matters he wanted to be discussed in the ground (g) appeals was not warning enough. The agenda must have been based on the Council's statement for the hearing, which was silent on the question of the appellants' knowledge. No allegations of bad faith had been made at that stage. The Inspector should not have treated all of the appellants as if they were one, with the same knowledge of the planning position. After this issue arose Mr Pitblado made clear to him, at the site visit, that he had not known there was no planning permission for Gable End, and produced his solicitor's invoice as evidence that a search had been done. It had never been put to him that he had not told the truth about this. He had no chance to produce further evidence to support what he told the Inspector. And Mr King had no opportunity to make submissions on the question the Inspector had raised.
- Thus, submitted Mr Powell, the appellants had suffered real prejudice. A finding of bad faith or untruthfulness on their part was serious. It might undermine their claims in negligence against their solicitors. It had weakened their argument on "humanitarian reasons" for an extension of time to comply with the enforcement notices. The procedure adopted by the Inspector offended the rules of natural justice. It denied the appellants the fair hearing to which they were entitled under Article 6 of the Human Rights Convention. Faced with an issue involving an allegation or implication of bad faith, the Inspector ought to have been scrupulously fair in his conduct of the proceedings. The matter should have been tackled at the hearing, not at the site visit. The Inspector's failure to record the fact that Mr Pitblado had presented the solicitor's invoice to him betrays "the unsatisfactory procedure of attempting to deal with serious forensic issues on site in an informal manner". An adjournment should have been granted to allow the appellants time to give Mr King proper instructions and to consider whether they now wanted a lawyer to represent them. An informal hearing was not the right forum in which to ventilate allegations of bad faith. Had Mr King known that cross-examination of the appellants might have been required, he would not have chosen the informal procedure, but would have opted instead for a public inquiry.
- Mr Powell relied on the observations made by Pill LJ on the duties of an Inspector in conducting an informal hearing, in Francis v First Secretary of State [2008] EWCA Civ 890, where he cited his own judgment in Dyason v The Secretary of State for the Environment [1998] JPL 778 (at p.784):
"… 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.".
In Francis Pill LJ referred to the decision of Keene J (as he then was) in Croydon London Borough Council v Secretary of State for the Environment [1999] EWHC Admin 748, in which he said (at paragraph 43 of his judgment):
"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 [Dyason] 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 [Dyason].".
Pill LJ also referred to Ouseley J's observations in Castleford Homes Ltd v The Secretary of State [2001] EWHC Admin 77 (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."
and (at 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 … ." .
- Mr Powell submitted that the Inspector seems to have decided the ground (g) appeals by adopting an approach neither mentioned at the hearing nor apparent in his decision letter. In paragraph 21 of his first witness statement the Inspector says that the basis for his having attached little weight to the appellants' "ongoing litigation" was his view that they "ought to have had some inkling" of the planning position. Far from applying a subjective approach to this aspect of the ground (g) appeals, which is how one must read paragraph 37 of his decision letter, the Inspector had in fact adopted an objective test.
- Finally, Mr Powell suggested that the Inspector's findings and conclusions in the parts of his letter where he considered the appellants' appeals on grounds (a) and (f) may have been tainted by unfairness in his treatment of the appeals on ground (g). This, however, as Mr Powell acknowledged, was not a point taken in the appellant's notice or even in his skeleton argument, and he did not press it as an additional ground of appeal.
- Ms Busch submitted that the appellants effectively put the question of their own knowledge of the planning status of their properties at the time when they acquired them on the agenda for the hearing. They made this the basis for their appeals on ground (g). It was up to them to decide, with the benefit of Mr King's professional advice, whether and how to support with evidence the assertions he had made on their behalf – assuming, of course, that they had any evidence they were prepared to submit for scrutiny. Once it was clear that the Council was opposing their case on ground (g), the appellants had a further opportunity to consider whether and how they were going to substantiate what Mr King had said, and whether they now wanted to opt for a public inquiry instead of a hearing. Again, they would have had ample time to take Mr King's advice about this. If there was any lingering doubt in their minds, or in Mr King's, about the relevance and significance of this matter, it would surely have been dispelled once and for all by the Inspector's agenda, which he had prepared in the light of the submissions he had received from the parties. Now – as the appellants could only have expected – it was confirmed that their litigation against their solicitors was going to be a topic for discussion at the hearing. But even at that stage no application was made for an adjournment or for the informal process to be abandoned in favour of an inquiry. At the hearing – again as one might have expected – the Council amplified its opposition to the ground (g) appeals. Mr Staincliffe questioned the credibility of the appellants' assertions about litigation. At this point too Mr King could have sought an adjournment, or asked for the appeals to be heard at an inquiry, had he thought that his responsibilities as the appellant's professional representative obliged him to do so. The Inspector then gave the appellants yet another opportunity to reveal what they had known of the planning position. Mr King was appearing for all of them. He knew what was going on. He did not protest. If he had felt that the Inspector's conduct of the hearing, or of the site visits, was in any way unfair to Mr and Mrs Pitblado or to any of the other appellants, he could have said so at the time. He did not. Only after the appeals were dismissed did the appellants' grievance emerge. And as a ground of challenge under section 289 it is wholly unjustified.
Discussion
- I cannot accept Mr Powell's submissions on this issue. In my view those made by Ms Busch are correct. The procedure adopted by the Inspector was neither unfair nor prejudicial to the appellants.
- In Mr King's written submissions on their behalf the appellants had based their ground (g) appeals on the asserted need for time to pursue proceedings against their solicitors for negligence in the conveyancing of their properties. I was told that no claims have yet been issued – more than two years after the enforcement appeals were heard. But the Inspector was clearly being invited by the appellants to conclude that such litigation was likely. In paragraph 5.2 of his statement Mr King submitted that the appellants had "purchased or tenanted the properties in good faith", with the help of solicitors. What this meant, said Mr Powell, was that when the appellants acquired interests in their properties they were unaware that the development had not been approved. In fact, however, Mr King's statement did not say what the appellants actually knew, or what their solicitors had done or had said to them.
- All of the appellants were, in one way or another, connected to Thorne Barton Estates Limited. The Inspector learned this at the hearing. But there was no evidence before the Inspector spelling out precisely what the appellants had been told by Thorne Barton Estates Limited, or by their own solicitors, before the transactions were completed, or what the mortgagees had been told. No information was given to the Inspector to lend substance, or detail, to Mr King's remarks about professional negligence. No correspondence was produced to show the results of searches being queried or solicitors being warned that claims were envisaged.
- By the end of the hearing, therefore, few of the facts had emerged. But the Inspector is not to be blamed for that. The appellants had chosen to rely on assertions about their personal "good faith" and about the spectre of personal hardship, without evidence that would have made those assertions good. It was in this way that they were seeking to persuade the Inspector, if he was against them on their other grounds, to allow their appeals on ground (g), giving them more time to put right the breach of planning control. The question of whether they knew that the development lacked planning permission when they acquired interests in their properties was not an issue generated by the Inspector. It was inherent in their ground (g) appeals.
- Although the appellants had raised the prospect of litigation against their solicitors and the likely delay in awards of damages in such litigation, which, they said, would make it difficult for them to find homes elsewhere, the Council was not convinced. And that was plain well before the hearing. In paragraph 10.2 of its statement the Council had noted that the appellants were relying on "potential litigation" in their appeals on ground (g). It had not conceded, however, that this was a sound basis for allowing the appeals. It still maintained that the period of 12 months specified in the notices was long enough. So the appellants could scarcely have been surprised when, in his agenda for the hearing, the Inspector identified the "position on [their] litigation" and the "[relevance] of litigation to the period for compliance" as issues for discussion. At the heart of these issues was the question of what weight, if any, should be given to the assertions made in section 5 of Mr King's statement, and, in particular, to the concept of the appellants being innocent parties misled by negligent legal advice. Given the way in which the appellants' case on ground (g) had been framed, it was only to be expected that this question would come up at the hearing. And it did. Mr Staincliffe's evidence to the court, which is consistent with the Inspector's, confirms that at the hearing the Council expressed its doubts about the case put forward by the appellants on ground (g). Even if one were to ignore Mr Staincliffe's evidence, one is left with the appellants' own account in Mr King's first witness statement, which makes it clear that the Inspector drew the issue of what they had known of the planning position from what had been submitted on their behalf.
- This, therefore, is not a case in which a new issue, of which an appellant had had no notice, was sprung on him by a local planning authority or an inspector in the course of a hearing. Here it was the appellants themselves who had introduced the issue. That is why it was on the Inspector's agenda. The initiative lay with the appellants throughout. It was their choice to conduct their appeals as they did. They cannot complain that they were denied the chance to do so in a different way. One must not forget that they were represented by a professionally qualified and experienced planning consultant.
- The appellants elected to present their appeals together, with Mr King appearing for them all. On their behalf Mr King had agreed to the informal process. In his submissions on the ground (g) appeals, he did not, at any stage, seek to distinguish one appellant from another. At the hearing he did not ask for an adjournment of the hearing to allow them – or any of them – to produce evidence in support of the submissions he had made. He did not urge the Inspector to consider whether a public inquiry might be a more suitable forum for the giving and testing of such evidence. It was not incumbent on the Inspector to suggest that. He was not obliged to help the appellants make their case by prompting their professional agent to call them as witnesses. It was up to them, with the benefit of Mr King's advice, to decide what material they were going to produce at the hearing to persuade the Inspector of the strength of their arguments on each ground of their appeals, including ground (g). The Inspector did not have to guide them in this. He did not have to invite any of them to attend the hearing, or the site visits. By giving Mr Pitblado the chance to bolster their case on ground (g) after the hearing had ended, he did more than he needed to do to discharge the duties he had.
- I do not believe that Mr Powell's argument gains any force from the relevant jurisprudence. The striking feature of all the cases to which he referred is that each of them turned on its particular facts. In each case the court considered the context in which allegations of unfairness had been made. It is true that an inspector conducting an informal hearing, which is essentially an inquisitorial rather than an adversarial process, has to play – as Keene J said in the Croydon case – "an enhanced role in order to resolve conflicts of evidence". However, as Pill LJ said in Francis (at paragraph 28), there is "a requirement upon an appellant, whose appeal it is, to put his case fully before the inspector", and (at paragraph 30) "[an] inspector has his duties, but he is entitled to rely on a properly represented appellant to put the case fully to him." In that case, the court held, the inspector had been entitled to assume that the appellant was aware of the relevant issue (which concerned the form of a ventilation system for premises used as a tea room and coffee shop) and "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" (paragraph 32 of Pill LJ's judgment). Pill LJ emphasized (at paragraph 33) "the need for an appellant to put his case to the inspector". The appellant in that case had relied on the inspector to do more than "was the function to be expected of him when conducting his own investigation" (ibid). Pill LJ went on to say this (at paragraph 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.".
Keene LJ agreed. He added this (at paragraph 38):
"… 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-[inquiry] 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. …".
- In my view similar conclusions can be reached in this case. The Inspector did not fail to conduct the hearing, or the appeal process as a whole, in accordance with the rules of natural justice and with the right to a fair trial enshrined in Article 6 of the Human Rights Convention. Indeed, as I have said, I think he can be said to have gone beyond what fairness required by giving Mr Pitblado the chance to add to what Mr King had submitted for him, and for the other appellants, in his statement and at the hearing. He gave Mr Pitblado the chance to speak to him at the site. He could not have been criticized if he had not done that. The way in which this part of the process was dealt with was not unfair to the appellants. The Inspector indicated at the hearing that he wanted to hear what Mr Pitblado had to say, if anything, to help him on ground (g). Mr Pitblado – according to his own and Mr King's version of events – was ready to speak to the Inspector when he came to his home. Mr King knew what was happening. He did not complain, either at the hearing or at the site visits, that it was in any way unfair to Mr Pitblado or to any of the other appellants, or that the Inspector was putting any of them at a disadvantage. Had Mr King felt any misgivings of that kind he could easily have made them known at the time. The Inspector was not obliged to give Mr Pitblado or any of the other appellants a further opportunity to provide evidence that it was open to them to provide, and one could reasonably have expected them to provide, at the hearing.
- I reject Mr Powell's further argument that in his evidence to the court the Inspector has admitted to an approach to the ground (g) appeals different from that to be seen in paragraph 37 of his decision letter, and on which he ought to have asked for the appellants' response at the hearing. That argument is not well founded. It is the Inspector's decision letter one must look at if one is to discern how he decided the appeals. And in my view what he said in paragraph 37 of his letter is perfectly clear. I do not think that paragraph can be read in any other sense than the Inspector's words convey, which is that the appellants had failed to convince him that they were ignorant of the planning position at the relevant time or had not tried to find out what it was. I see no inconsistency between this and the Inspector's remark in his first witness statement that in his view the appellants "ought to have had some inkling" of the planning position.
- The notion that the Inspector's consideration of the appellants' appeals on grounds (a) and (f) was somehow infected by unfairness in his handling of the ground (g) appeals is also misconceived. There was no unfairness.
Issue (2): failure to take into account a material consideration?
Submissions
- Mr Powell submitted that the Inspector fell into error by failing to take into account the appellants' efforts to discover the planning status of their properties. It was clear that Mr Pitblado had tried to find out whether planning permission had been obtained. There was no dispute at the hearing that the appellants had retained solicitors to undertake the conveyancing. Mr Pitblado produced a copy of his solicitor's invoice. The Inspector ignored or misunderstood that evidence. And the rest of the evidence before him was insufficient to prove that the appellants did know that planning permission had not been granted. The mere fact that the parties had had some connection with each other and that the transaction had not been on the open market did not mean the appellants must have known that there was no planning permission.
- Ms Busch submitted that the court does not have to resolve the evidential dispute about Mr Pitblado having produced for the Inspector a copy of his solicitor's invoice. Mr Pitblado seems firm in his recollection that this did happen, the Inspector no less so that it did not. It should be remembered, however, that the appellants were arguing before the Inspector that planning permission was not required. If this was right, it would not have mattered whether their solicitors had carried out the searches or, if they had, what the outcome was, or what the solicitors had said it was. No planning permission would have been discovered if those searches were done. It follows that the appellants must have either known or assumed that there was no permission. When they occupied their properties they must, in the Inspector's words, "have knowingly exposed themselves to the financial risks involved in occupying them without such a permission in place". If one looks at the matter logically in this way, one can see that evidence one way or another about searches undertaken by the appellants' solicitors would not have affected the Inspector's analysis in paragraph 37 of his decision letter at all. There was no evidence to support the suggestion that the appellants' solicitors had been negligent. And in any event the findings the Inspector made would have been appropriate even if Mr Pitblado's solicitor's invoice had been before him.
Discussion
- I do not believe Mr Powell's argument on this issue can be sustained. Again, I think Ms Busch's is cogent. I do not accept that the Inspector's decision is flawed by a failure to take material considerations into account.
- Neither the Inspector nor Mr Staincliffe recalls the solicitor's invoice being produced by Mr Pitblado, or Mr King, at the site visit. Certainly, no such document was produced at the hearing. The Council was not given a copy of it. And there is no record of it in the list of documents set out at the end of the decision letter.
- If it were necessary for me to resolve the conflicts in the evidence on this issue, I would prefer the account given by the Inspector and Mr Staincliffe. I see no reason to doubt the veracity of their version of what happened at the hearing and at the site. However, even if memory has let both of them down – and, having considered all the relevant evidence, I do not believe that it has – I cannot see how Mr Pitblado's solicitor's invoice helps the appellants' cause in these proceedings. That document would have been some evidence of searches having been carried out by Mr Pitblado's solicitor. But it does not reveal what the outcome of those searches was, or what Mr Pitblado or any of the other appellants was told about the planning position. No documentary evidence was provided to the Inspector to demonstrate that.
- The Inspector did not find that any of the appellants had failed to have searches carried out by their solicitors. On the contrary, the finding he made was to the opposite effect. He took care to put that finding in the negative. He did not say that the appellants, or any of them, had behaved in bad faith. He said he could not accept that they "will not have known, or tried to establish" whether permission had been sought or obtained. He went on to say that he considered it "more likely on the balance of probabilities" that the appellants had knowingly exposed themselves to the financial risks involved in occupying their homes without a planning permission in place, and that "little weight" could be attached to the view that the compliance period should allow for litigation or for tenancy agreements to run their course. This was, in my view, an entirely reasonable, if not inevitable, conclusion for the Inspector to reach. It was not tantamount to a positive finding of dishonesty on the part of the appellants, or any of them, or on the part of Mr King. The Inspector did not go that far; he did not have to. He was entitled to find and conclude as he did on all the material before him. And I do not accept that the analysis in paragraphs 37 and 38 of his letter might have been materially different if Mr Pitblado's solicitor's invoice had been before him. That document would not have displaced the findings he made or the conclusions he reached.
- The task the Inspector faced in deciding the ground (g) appeals was to draw what inferences he reasonably could from the submissions and evidence – and lack of evidence – before him. That is what he did. Whether or not the Council had actively disputed the assertions made by Mr King in advancing the appeals on ground (g), the Inspector did not have to accept those assertions as soundly based. It was open to him to reject them. The appellants cannot criticize the conclusions expressed in paragraphs 37 and 38 of his letter as conclusions to which he could not reasonably have come on the material before him, even if that material did include Mr Pitblado's solicitor's invoice.
Discretion
- If I am right in the conclusions I have reached on the two main issues in this appeal, there is no need for me to consider whether I should exercise my discretion to withhold relief.
- However, if I were wrong on either of the two main issues, I would nevertheless exercise my discretion to uphold the Inspector's decision.
- Mr Powell contended that, in the absence of evidence as to the appellants' resources, and in view of the effective findings of bad faith on their part in the Inspector's letter, the case should be remitted to the Secretary of State so that a satisfactory decision can be made. However, as Ms Busch submitted, it would not have been realistic to expect a ground (g) appeal in this case to result in an open-ended period for compliance while the appellants pursued litigation against their solicitors. There is no evidence before the court to demonstrate any progress in such litigation. Indeed, I was told that no such proceedings have been begun. The time that has gone by since these proceedings were launched has given the appellants more than two years' grace. And they have had more than two years and nine months since the Council enforced. Ms MacGregor and Mr Bullen sought only an extension of time until May 2012. They have now had six months more than that. For Mr and Mrs Pitblado to expect to be given three years to comply – in effect, a temporary planning permission for that period – was, I think, extremely optimistic. Anyhow, if I were to quash the Inspector's decision, so that the appeals went back for redetermination, the new decision would almost certainly not emerge until after 26 February 2013, which will be the third anniversary of the date on which the enforcement notices were issued.
- I am in no doubt that this is a proper case for the exercise of the court's discretion to refuse relief. It is one of those cases, such as Botton v Secretary of State for the Environment [1992] 1 PLR 1, in which nothing is to be gained by granting a remedy when the party seeking it has already achieved what he was striving for in the underlying proceedings. In Botton (at page 18F-H), Roch J (as he then was) referred to the error of law he had found: that in deciding what was a reasonable time for compliance with the enforcement notice the inspector had thought Mr Botton and those representing him had conceded that one month would be enough for the necessary work, whereas, in fact, no such concession had been made. When the case came before the court, however, the local planning authority undertook not to enforce the notice in such a way as to deny Mr Botton the time he originally sought for complying with the notice. Roch J went on to say (at page 20H to page 21C) that it was "open to the court to decline to remit the matter despite the fact that there has been an error of law", but (at page 21D to H) that in his view
"… this is one of the exceptional and rare cases in which it is right to exercise the discretion not to remit the matter. The error of law does not relate to the merits or substance of the appeal. It relates simply to the time in which the remedial work should be done to Mr Botton's land so as to comply with the enforcement notice.
…
The local authority have now given an undertaking through their counsel that they will not seek to enforce the enforcement notice or prosecute Mr Botton until the next sowing season has passed, so that, in effect, Mr Botton has not merely one month to effect the necessary work, he has from now until the end of the spring sowing season of 1992. In those circumstances, it would, in my judgment, be wrong to prolong this matter further by sending it back before the Secretary of State so that a minor alteration could be made to his decision which has effectively been achieved by the formal undertaking given by the local planning authority through their counsel. …".
Roch J therefore exercised his discretion not to remit the case to the Secretary of State.
- I see merit in taking the same approach here. This too is an exceptional case. The only challenge that is now live relates to the period for compliance with the Council's enforcement notices. The Inspector rejected the appeals on grounds (a) and (f), and his findings and conclusions on those grounds have not been challenged. I cannot see what point there would be now in quashing the decision he made. If the appeals on ground (g) were remitted to the Secretary of State they would have achieved their objective before being decided again. Allowing the appellants still more time to comply with the notices would, in my view, be disproportionate and unjustified. The only other basis for granting relief urged upon me by Mr Powell was the appellants' wish to have the perceived stigma of bad faith removed. I am not persuaded by that. As I have said, the Inspector did not find that the appellants had acted in bad faith. And even if they could now show that their ground (g) appeals had a sure foundation in fact, I would not regard that as a reason for granting relief at this stage.
Conclusion
- For the reasons I have given this appeal is dismissed.
