Wheeler v First Secretary of State

Factual and Procedural Background

These proceedings concern an application under section 288 of the Town and Country Planning Act 1990 to quash a decision made by an inspector appointed by the first defendant regarding two planning appeals, alongside an application for leave under section 289(6) of the same Act to appeal a decision of the inspector relating to an enforcement notice appeal. The inspector dismissed all three appeals in a single decision letter dated 8 December 2002, following appeals conducted by written representation.

The enforcement notice appeal and one planning appeal relate to a workshop at Three Ways Farm, Furnace Lane, Warbleton, Heathfield, East Sussex. The claimant demolished an existing building and erected the workshop without planning permission. An enforcement notice had been served by the second defendant, Wealden District Council, which the claimant appealed, contending that planning permission ought to be granted. A retrospective planning application for the workshop was refused, and the claimant appealed that refusal, constituting the workshop planning appeal. The claimant asserted the workshop was necessary for pursuing a woodworking and joinery hobby.

The other planning appeal concerns a detached annex at Three Ways Farm, originally granted permission in 1994 for use as a self-contained single bedroom unit for dependent relatives, subject to condition 4 restricting its use to be integral to the main dwelling and not as a separate dwelling. In 2001, the claimant applied to vary condition 4 to allow use as self-catering holiday accommodation; this was refused in 2002, and the claimant appealed. This is referred to as the "annex appeal," while the workshop-related appeals are collectively termed "workshop appeals."

The workshop appeals focus on whether the workshop lies within the curtilage of Three Ways Farm, a key factor in applying local planning policies. The parties agreed that the outcome on the curtilage issue would determine whether leave to appeal the enforcement notice appeal should be granted. The annex appeal involves a separate issue concerning traffic implications arising from the inspector's unaccompanied site visit observations.

The appeal site is located within the High Weald Area of Outstanding Natural Beauty (AONB), subject to restrictive development policies. However, local policy permits ancillary buildings within the curtilage of existing dwellings outside development boundaries, making the curtilage determination critical.

Legal Issues Presented

1. Whether the inspector correctly applied the legal test to determine if the workshop is within the curtilage of the dwelling at Three Ways Farm.
2. Whether the inspector erred in law or breached natural justice by relying on case law not cited by the parties and failing to provide an opportunity for the parties to make representations on such case law.
3. Whether the inspector's unaccompanied site visit and subsequent reliance on observations regarding traffic hazards breached the rules of natural justice.
4. Whether leave to appeal should be granted in relation to the enforcement notice appeal based on the curtilage issue outcome.

Arguments of the Parties

Appellant's Arguments

• The inspector relied on case law (Sinclair-Lockhart's Trustees v Central Land Board and SSETR v Skerritts of Nottingham Ltd) without these being cited by the parties, denying them a fair opportunity to comment, contrary to the principles established in Ball v Secretary of State for the Environment, Transport and Regions & Kirklees MBC.
• The inspector misquoted and misapplied the legal test from Sinclair-Lockhart's Trustees, incorrectly elevating the standard from "it is enough" to "it must," thus applying a higher and unsupported threshold.
• The claimant was prejudiced by the lack of opportunity to make further representations or request a full inquiry on the curtilage issue after the inspector introduced new case law.
• The inspector breached natural justice by failing to disclose the details of his unaccompanied site visit observations on traffic, denying the claimant a chance to challenge the evidence.
• The claimant sought costs for all matters, asserting success on the main appeals and leave applications.

First Defendant's Arguments

• The curtilage issue was the principal controversial matter and the parties had effectively addressed it; the inspector's reference to well-known case law was appropriate, and the parties chose not to make submissions on it.
• The inspector's reliance on case law did not introduce new factual matters warranting further representations or inquiry.
• The question of curtilage is ultimately one of fact and degree, and the inspector did not misdirect himself legally.
• The inspector's description of the Sinclair test as "must" rather than "it is enough" was an overstatement but did not amount to legal error as the test was only part of the overall assessment.
• The inspector's unaccompanied site visit was proper under the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000, and there was no requirement to disclose observations or allow representations on them.
• No unfairness arose from the site visit procedure; the claimant had opportunities to request an accompanied visit or make observations but did not do so.
• The first defendant sought a detailed assessment of costs, acknowledging the difficulty in apportioning costs between the appeals.
• The first defendant applied for permission to appeal, contending that an important procedural point arose concerning inspectors relying on case law not cited by parties in written representations appeals.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered the workshop appeals focusing on the curtilage issue. It noted that the inspector had relied on case law not cited by the parties and had failed to provide an opportunity for the parties to make representations on those cases. This was held to be inconsistent with the duty of fairness as outlined in Ball v Secretary of State. The inspector had misquoted the test from Sinclair-Lockhart's Trustees, substituting "must" for "it is enough," thereby applying a more stringent test than the law requires. Although the first defendant argued the inspector considered the test as one part of a broader assessment, the court could not be certain the inspector did not apply the stricter test improperly.

Given the absence of prior reference to these cases in the written representations and the potential prejudice to the claimant, the court found it inappropriate to let the inspector's decision on the curtilage issue stand. The section 288 application relating to the workshop planning appeal was therefore allowed, the inspector's decision quashed, and leave to appeal the enforcement notice appeal granted. The matter was remitted to the first defendant for rehearing and redetermination.

Regarding the annex appeal, the court examined the inspector's unaccompanied site visit and his observations regarding traffic hazards at the access junction. The court found no breach of natural justice, as the inspector informed the parties of his observations and gave them the opportunity to request an accompanied visit or make representations, which they did not. The inspector's decision that condition 4 still served a necessary planning purpose for highway safety was upheld, and the section 288 application relating to the annex appeal was dismissed.

On costs, the court considered the mixed outcomes and proposed that the claimant receive costs for the workshop appeals and the Secretary of State for the annex appeals, with the quantum to be subject to detailed assessment. After submissions, the court ordered that the claimant be awarded two-thirds of the costs overall, subject to detailed assessment.

The first defendant sought permission to appeal on the procedural issue regarding inspectors relying on case law not cited by parties in written representation appeals. The court declined permission, finding no real prospect of success given the narrow basis of the decision focused on the inspector's misquotation of the test.

The court extended the time for the first defendant to apply for leave to appeal to the Court of Appeal to 14 days after receipt of the transcript.

Holding and Implications

The court granted the section 288 application to quash the inspector's decision on the workshop planning appeal and granted leave to appeal the enforcement notice appeal, allowing that appeal and remitting the matter for rehearing and redetermination by the first defendant.

The section 288 application relating to the annex planning appeal was dismissed, affirming the inspector's decision on highway safety grounds.

Costs were apportioned with the claimant awarded two-thirds of the costs, subject to detailed assessment.

The court refused permission to appeal on the procedural issue concerning reliance on unreferenced case law by the inspector, concluding no real prospect of success existed.

The direct effect is that the workshop appeals will be reheard with further opportunity for parties to address the curtilage issue, while the annex appeal stands as decided. No new precedent beyond the application of established procedural fairness principles was set.