Benson v The Secretary of State for Communities & Local Government & Anor [2018] EWHC 2354 (Admin)

Case No CO/4430/2017[2018] EWHC 2354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/09/2018
Before
MR C M G OCKELTON, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
Juliette BensonAppellantThe Secretary of State for Communities & Local GovernmentRespondentsHertsmere Borough CouncilRespondent
Anjoli Foster (instructed by J. Benson Solicitors Ltd) for AppellantJack Parker (instructed by Government Legal Department) for First RespondentNo appearance for second RespondentHearing Hearing date: Thursday 5 July 2018
JudgmentMr C M G Ockelton:
[1]This is an appeal under section 289 of the Town and Country Planning Act 1990 (as amended) against the decision of a planning Inspector, Mr Andrew Hammond, dated 29 August 2017. That decision in turn dismissed an appeal by the appellant against an Enforcement Notice issued by the Second Respondent on 11 November 2016. The breach of planning control alleged in the notice was that without planning permission there had been a material change of use of premises at 113 Hillside Avenue, Borehamwood, Herts into two self-contained residential units. The notice required the cessation of the use of the premises as two self-contained residential units and consequential reinstatement.[2]113 Hillside Avenue, Borehamwood is a semi-detached house in a street of similar houses. It belongs to Mr and Mrs Benson: Mrs Benson, the appellant, is a solicitor in practice and in these proceedings is represented by her own firm; Mr Daniel Benson features in these proceedings, as will be seen, but is not a party to them. Building works in 2007 replaced storage at the side of the house with a single-storey extension filling the space between the house and the site boundary and consisting, according to the plans then deposited, of a guest bedroom with en suite bath and a “play area”. It is common ground that at some period or periods since that date the extension then built has been used as a separate independent dwelling. It is also common ground that, at some stage, kitchen facilities were introduced to it. In 2016 the appellant applied to the local planning authority for retrospective planning consent for use of the extension, described as a “studio flat”, as a self-contained unit. The decision to refuse permission is dated 28 April 2016. The appellant appealed, and the appeal was dismissed in a decision of a planning Inspector on 26 October 2016. The Enforcement Notice, requiring the cessation of the use of 113 Hillside Avenue as two self-contained units, followed. It was served specifically and separately on Mr and Mrs Benson, as well as on the “Owner/Occupier” of the premises and a bank mortgagee. Mrs Benson appealed against the Enforcement Notice under section 174 of the 1999 Act on the ground, specified in section 174(2)(d): “That, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by [the matters stated in the notice].” (There was also an appeal on ground (a), that planning permission ought to be granted, but as the appellant failed to pay the appropriate fee, the appeal on that ground lapsed).[3]The local planning authority prepared and presented its case in writing in the usual way. There was a certain amount of correspondence from the appellant’s side but very little: that was a matter which had to be dealt with at the beginning of the inquiry on 22 August 2017, on which date also the Inspector conducted a site visit. His decision is dated, as I have said, 29 August 2017; there is a separate decision in relation to costs made the same day.

The Law 1. The Role of the Court

[4]The appeal before me is not an appeal on the merits: it can succeed only on a point of law. The relevant principles were stated by Dobbs J in Knievel v SSCLG [2012] EWHC 322 (Admin) at [11] as follows:
“(1) The Court can interfere with the Inspector’s decision if he acted on no evidence or if he has come to a conclusion to which on the evidence he could not reasonably have come, or if he has taken into consideration matters which he ought not to have taken into account or vice versa. It is identical with the position when the Court has power to interfere with the decision of a lower Tribunal which has erred in point of law: See Ashbridge Investments Ltd v MHLG [1965] 1WLR 1320 at (1326 G/H) (2) If there were no evidence for a particular finding or if the Tribunal had not taken into account at all a relevant consideration then these could then be grounds of appeal raising a question of law, but the contention that a Tribunal had failed to give adequate weight to evidence or adequate or sufficient consideration to a particular circumstance does not: see ELS Wholesale (Wolverhampton) Ltd v Secretary of State for the Environment [1987] JPL 844 at [845]. (3) If the Inspector’s findings are perverse or absurd or ones that no reasonable Inspector could have decided in the way that he did these will also be subject to challenge under the section: see Clark v Secretary of State for the Environment (1993) 65 P & CR 85 at [90] and Forkhurst v Secretary of State for the Environment (1983) 46 P & CR at 89.”
[5]In the words of Newman J in Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions [2011] EWHC 128 (Admin) (endorsed by the Court of Appeal [2002] EWCA Civ 226):
“The review involves examining the evidence but it does not mean examining the evidence with a view to forming its own view about the merits of the case, but only to explore in order to see if the decision is vitiated by legal deficiencies. The Court may not set about forming its own preferred view of the evidence.”
[2]Procedure in an Enforcement Appeal[6]The rules applicable are the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002. In relation to the issues arising in these proceedings, I need to draw attention first to rule 6(3) which required the appellant to serve on the Secretary of State and any other person served with the Enforcement Notice, a Statement of Case including (this arises from the definition in rule 1(1)) the full particulars of the case which she proposed to put forward at an Inquiry, and a list of any documents which she intended to refer to or put in evidence. Secondly, rule 15 provides that any person who proposes to give (or to call another witness to give) evidence at an Inquiry is required to serve a Proof of Evidence on the Secretary of State and on any person whom the Enforcement Notice was served.[7]Procedure at the Inquiry itself is governed by rule 17. The appellant, as a person entitled to appear at the Inquiry, is entitled to call evidence; evidence is subject to cross-examination; and the Inspector may refuse to permit evidence, cross-examination or presentation of any matter “which he considers to be irrelevant or repetitious”. If he refuses to allow a person to give oral evidence that person may submit material in writing. Subject to these specific provisions, rule 17(1) provides that the Inspector is to determine the procedure at an Inquiry.[8]There is a procedural guide to Enforcement Notice appeals. The version before me is dated 23 March 2016. At paragraph 1.9 the timetables for the submission of documents are set out and at 1.9.5 is this:
“Keeping to the timetables is fundamental to an efficient and fair appeal service and we expect everyone to comply with them.”
[9]The next few paragraphs relate to late documents. If documents are received after the deadline, they will “normally” be returned and the Inspector will not see them. There are exceptions in which a discretion to accept late documents might be exercised: these are where there is a new policy, where a relevant decision is made on another case, and where there is new legislation or national policy or guidance. At paragraph 3.1.1, the usual rule is stated again:
“If an appellant introduces late evidence during the appeals process which was not included within the facts and grounds or in the appeal statement… we will usually return it and it will not be taken into account.”
[10]Annex D deals with procedure in relation to Inquiries. D.12 is headed Acceptance of Late Documents in Exceptional Circumstances. In relation to documents submitted late and returned for that reason, D12.2 says that Inspectors do have discretion whether to accept late evidence. The next three paragraphs are as follows: “D.12.3 Before deciding whether, exceptionally, to accept it, the Inspector will require:• An explanation as to why it was not received by us in accordance with the rules; and• An explanation of how and why the material is relevant; and• The opposing parties’ views on whether it should be accepted. D.12.4 The Inspector will refuse to accept late evidence unless fully satisfied that:• It is not covered in the evidence already received; and• That it is directly relevant and necessary for his/her decision; and• That it would be procedurally fair to all parties (including interested people) if the late evidence were taken into account. D.12.5 If the Inspector accepts late evidence this may result in the need for an adjournment. Another party may make an application for costs or the Inspector may initiate an award of costs. This would be on the basis that the necessary adjournment had directly caused another party to incur expenses that would not otherwise have been necessary.”• An explanation as to why it was not received by us in accordance with the rules; and• An explanation of how and why the material is relevant; and• The opposing parties’ views on whether it should be accepted.• It is not covered in the evidence already received; and• That it is directly relevant and necessary for his/her decision; and• That it would be procedurally fair to all parties (including interested people) if the late evidence were taken into account.[3]Immunity from Enforcement.[11]In order to set the evidence in the present case in context, I must briefly set out the law relating to immunity from enforcement.[12]It is common ground in the present case that the use of the annex as a separate dwelling is a material change of use for which planning consent was required, but was never obtained. It is also common ground in this case that if the material change of use occurred more than four years before the Enforcement Notice was issued it was, on that date, not capable of enforcement. However, it is not sufficient for an appellant against an Enforcement Notice to demonstrate that the unlawful development took place too long ago for enforcement: it is necessary also to show that the illegality has continued for the whole of the relevant period before the Enforcement Notice was issued. The principle, and the reasons for it, are set out by Newman J in Thurrock:
“18. Where an Enforcement Notice is served, alleging a breach of planning control, its issue cannot be effective in law unless the breach alleged occurred within the prescribed time limit, because “… no enforcement action may be taken after the end of the period…”
The rationale of the immunity is that throughout the relevant period of unlawful use the Local Planning Authority, although having the opportunity to take enforcement proceedings, has failed to take any action, and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. In my judgment, it must follow that if at any time during the relevant period the Local Authority would not have been able to take enforcement proceedings in relation in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards the rolling period of years which gives rise to the immunity. 19. Since the burden is upon the recipient of a notice to establish a defence, that burden involves establishing that at any time during the relevant period enforcement action could have been taken. Each case will depend upon its own facts. Where a material change of use without permission is alleged, issues of intensity and character of the use will be relevant, as will occasions or intervals of inactivity. According to the particular use under scrutiny, short periods of inactivity may be regarded as part of a continuing use; longer periods may not be so regarded.”[13]In Fairstate Ltd v First Secretary of State and Westminster City Council Sullivan J (as he then was) as the trial judge was concerned with a case to which section 25 of the Greater London (General Powers) Act 1973 applied. That section deemed “the use as temporary sleeping accommodation of any residential premises in Greater London” to be a material change of use. But the way in which the judge set out the general position in his judgment, warmly endorsed in the Court of Appeal [2005] EWCA Civ 283 at [24] remains of general application.[14]Sullivan J said this:
"[19]. … The starting point is Panton and Farmer v Secretary of State for the Environment Transport and the Regions (1999) 78 P & CR 186. ... In a "normal" case to which s. 25 does not apply, if there is a material change of use from use X which has continued for 10 years and has therefore become immune from enforcement action and lawful to use Y, then a change back from use Y to use X will be a further material change of use requiring planning permission. That is why, in shorthand form, it can be said that the right to continue with the immune use will have been "lost"
. If the change of use from X to Y is not material then, in the normal course of events, there would equally be no material change of use from use Y back to use X. There would therefore, in those circumstances, be no development within the previous 10 years on which any enforcement notice could bite. … [22]… For so long as a landowner continues to use his land for use X, which has become immune by virtue of having continued for 10 years, a local planning authority will be unable to take enforcement action. However, the landowner cannot expect that immunity should continue if he ceases to use the land for use X and uses it for some other purpose, use Y, if a change back from use Y to use X is … as a matter of fact and degree, a further material change of use. While it is true that use for 10 or more years is equated with use pursuant to a planning permission for the purposes of s. 191(2) of the 1990 Act, it does not follow that a use which has become immune from enforcement action must be equated with permitted use for all purposes under the 1990 Act.”[15]The principle equally applies, of course, in circumstances in which the appropriate period under section 171B is four years rather than ten years.[16]The burden of establishing immunity by lapse of time is on the appellant: Nelsovil v MHLG [1962] 1 WLR 404.

The Inspector’s decisions

[17]I need to set out almost all of the Inspector’s substantive decision. After introductory paragraphs, it proceeds as follows:
“Reasons 4. Under the ground (d) appeal the appellant pleads that the annex at 113 Hillside Avenue had been let as a separate unit of accommodation since late 2007. 5. The annex consists of a narrow single story side extension, up to the boundary with the neighbouring property, with a separate front door off the parking area to the front of the dwelling. 6. Prior to the service of the enforcement notice, the appellant’s husband responded on 18 December 2015, to a Planning Contravention Notice, stating that the kitchen in the play area (the kitchen within the annex) was set up in the play area in August 2014 following a leak in the roof of the main kitchen; and that the current occupant was a Mr Paul Beattie, with the only previous tenant being Miss Simone Perra who was there from 10 October 2014 to July 2015. Mr Benson submitted an amended response on 23 December 2015 wherein he added “Please note that the kitchen was constructed in 2007 and I believe the Inspector who inspected the work was aware, as he made suggested (sic) that we should have an extractor in the kitchen, which we did.” 7. The Council’s representative, under cross-examination, confirmed that she had checked the Council’s Building Control records and, although there should be a record of such an inspection, she could find none. 8. The appellant confirmed that the kitchen was installed in late 2007 during the construction of the extension but was unable to produce any firm evidence other than receipts for kitchen appliances alleged to be those installed in the annex. 9. Prior to the Inquiry the appellant had provided no evidence as to occupation of the annex prior to Miss Perra’s tenancy which began on 10 October 2014. The appellant was also unable to explain why Mr Benson had stated that Miss Perra was the first tenant, suggesting that “it was a mistake”
. Mr Benson did not appear as a witness to explain why he could have made such a mistake and none was otherwise given. 10. At the Inquiry the appellant produced a bundle of evidence consisting of copies of a number of tenancy agreements dating back to 25 November 2007; a short letter from Barons Estates; and a letter from Mr and Mrs Benson, dated 2 March 2016, which the appellant states was hand delivered to the Council. Although Mrs Benson felt certain that the letter was delivered she could not be sure whether it was delivered by her husband, by her daughter or by herself. The Council have no record of receipt of the letter. 11. The letter from Barons Estates, dated 4 February 2016 and addressed ‘to whom it may concern’ reads “We can confirm from our records that we initially rented the property for Mr & Mrs Benson in July 2008. We have assisted them since that time, to date, with a number of tenants. Please note there have been intermittent gaps whereby we believe Mr & Mrs Benson have had family/friends stay/maintenance issues.” 12. The tenancy agreements, which the appellant explained had been drawn up by the estate agents were as follows:- a) Miss Moore 12 months from 25:11:2007 to 24:11:2008 (unsigned) b) Mr Daniel Simson 12 months from 05:07:2008 to 04:07:2009 c) Mr Paul Ruvin 12 months from 2:01:2010 to 01:01:2011 d) Miss K Nitka 12 months from 1:02:2013 to 31:01:2014 e) Miss S Perra 12 months from 20:10:2014 to 19:10:2015 f) Mr Paul Beattie 12 months from 18:09:2015 to 07:09:2016 Although the latter 5 agreements are signed none are witnessed. Although the latter 5 agreements are signed none are witnessed. 13. The letter of 2 March clarifies that the kitchen was installed in 2007 and was used temporarily by the appellants in 2014, and explains that the side annex had “always been in use since its completion, sometimes by our guest, family members and sometimes tenanted.” The letter continues with a list of persons occupying the annex “according to our estate agent” as follows:- a) January 2007 – Miss Moore b) July 2008 to December 2010 Daniel Simson c) January 2010 to January 2011 Mr Paul Ruvin d) February 2013 to February 2014 Miss Nitka e) March 2014 Ms N Riley f) July 2014 Mr S Alavi about 6 months or less g) October 2014 Simone Perra h) 2015 to date Paul Beattie. 14. The letter continues by stating that “for all dates not accounted for the space was used by us, family members and guest”, further explaining no timetable was kept of such use. 15. Although the dates in the letter were allegedly provided by the estate agent, under cross-examination the appellant corrected a number of inconsistencies by reference to banking records of rent payments. The records were not produced as evidence. 16. It was suggested that the first tenancy (Miss Moore) had indeed commenced in November 2007 and not January 2007, and that Miss Moore had left early, hence the overlap with Mr Simson’s tenancy agreement. Although Mr Simson’s tenancy was originally to July 2009, the appellant explained that this was extended by agreement. Mr Rubin, it was stated, also extended his tenancy. No evidence was produced as to actual occupation during these periods of tenancy extension. 17. No evidence as to any identity checks or other investigations by the estate agent were provided nor were any statements by any tenants produced as evidence 18. When questioned in cross-examination, the appellant accepted that, without corroboration, the existence of a tenancy agreement was no proof of actual occupation. Furthermore, the appellant acknowledged that there were unrecorded periods of between a week and two months when relatives or other guests were occupying the annex and sharing the facilities of the main dwelling. They were not occupying the annex as a self-contained unit of accommodation. 19. A gap of two months between lettings during which time 113 Hillside Avenue reverted to a single dwelling house, such that the Council could not have taken enforcement action, would be significant. Any such gap, as opposed to one for example when repairs were being carried out or a new tenant was sought could not be considered de minimis and would constitute a break in the breach of planning control, the result being that a resumption of letting the annex as a separate unit would constitute a new breach of planning control and the 4 year period would recommence. 20. The totality of evidence as produced before and at the Inquiry is, therefore, inconclusive as to whether the annex was actually occupied as a self-contained dwelling for a continuous period of 4 years prior to the issue of the enforcement notice. In addition, no explanation has been provided as to inconsistencies between the responses to the Planning Contravention Notice and the late evidence produced at the Inquiry. 21. The burden of proof is on the appellant to show that on the date the enforcement notice was issued it was too late to take enforcement action, namely that the use had continued for a continuous period of 4 years prior to that date with no more than de minimis gaps. On the balance of probability it has not been demonstrated that the use of 113 Hillside Avenue has continued for a period of 4 years prior to the issue of the enforcement notice such that the alleged breach is immune from enforcement action. Other Matter 22. Within the Council’s proof of evidence, it was suggested that by claiming that the kitchen was installed in 2007 the appellant was suggesting its removal should not be required by the enforcement notice. Such a suggestion would have constituted a ‘hidden ground (f) appeal’. That matter was raised during the opening of the Inquiry but was not pursued by the appellant who, in any event, confirmed that the kitchen was installed at the time the annex was constructed so that it could be self-contained. The kitchen therefore facilitated the breach of planning control and the notice can require its removal. Overall Conclusion 23. For the reasons given above I consider that the appeal should not succeed.”[18]As indicated, there was also a decision on costs. The Inspector awarded costs against the appellant, giving in paragraph 10 of the cost decision his reasons as follows:- “The appellant had given no explanation in the grounds of appeal as to why the response to the Planning Contravention Notice conflicted with the assertion that the premises had been tenanted since 2007 and no evidence had been produced before the day of the Inquiry to substantiate the grounds of appeal. Although additional late evidence, in the form of a bundle of documents was admitted on the day, none of this documentation provided proof as to actual occupation of the premises by tenants for a continuous period of four years and the limited evidence as to tenancy agreements was not corroborated by any substantive evidence. As a result of the lack of any substantive evidence as to the actual occupancy and the acceptance that there were significant gaps when the breach ceased, the appeal was bound to fail.”

History of these proceedings

[19]The notice of appeal was filed on 27 September 2017. The grounds were accompanied by a witness statement from the appellant, and assert that: “During cross-examination, the appellant referred to a number of bank statements from 2008 onwards showing rent payments received from tenants at the annex… and a letter from Mr Paul Ruvin, a previous tenant, confirming that he had rented out the annex between January 2010 and January 2013…. The appellant and her barrister applied to introduce the bank statements and the Ruvin letter as evidence but the Inspector refused. … 11. … As part of his consideration of the evidence, the Inspector stated as follows:15. … The (banking) records were not produced as evidence.16. … No evidence was produced as to actual occupation during these periods of tenancy extension.17. … Nor were any statements by any tenants produced as evidence. 12. The appeal decision contains no mention of the appellant’s applications or requests to introduce the bank statements and the Ruvin letter and no mention of the Inspector’s decision not to allow these to he adduced as evidence for his reasons for the refusal.” 15. … The (banking) records were not produced as evidence. 16. … No evidence was produced as to actual occupation during these periods of tenancy extension. 17. … Nor were any statements by any tenants produced as evidence.[20]The grounds submit that the Inspector erred in law in failing to exercise his discretion properly in accordance with the appropriate principles and the guidance, particularly as he had allowed the appellant to refer to the bank statements and letter during cross-examination, but refused to look at the documents themselves and made his decision on the basis that the documents were not produced: this is said to be irrational. It is further asserted that the error made a substantive difference to the outcome of the appeal. The second ground is that the Inspector gave insufficient reasons for his decision to refuse to allow the admission of these documents as evidence.[21]It is clear beyond any doubt that the grounds relate to the Inspector’s treatment of material not produced before or at the beginning of the hearing but to which the appellant referred during her evidence. I shall call it “the extra material”. The allegation is that by failing to respond appropriately to applications to adduce the extra material as evidence, the Inspector failed to take into account a material consideration, or failed in his duty to give intelligible reasons, or both.[22]Permission was granted by Lang J on 31 October 2017 at a hearing at which neither of the Respondents was present or represented. By then the appellant wished to amend the witness statement served with the grounds: leave to amend was refused but the judge gave permission for a second witness statement to be filed. There was also permission for the appellant’s Counsel at the hearing, Mr Ashitey Ollennu, to file a witness statement. In the succeeding months there was a responsory series of witness statements: a second and eventually a “final” statement from Mrs Benson; three statements from Mr Ollennu; and two statements from the Inspector.[23]Comparison of those witness statements shows that the parties were at odds about what had happened at the hearing itself, whether any formal application for the admission of the extra material as evidence had been made, and, if so, how it had been dealt with.[24]On 16 January 2018, the parties were informed that the appeal was listed for substantive hearing on 1 March 2018. A month later, on 16 February 2018, the hearing being then only two weeks away, the appellant applied for an order that the Planning Inspector be required to attend the hearing for cross-examination. That application was listed before Lang J on 22 February 2018. She adjourned consideration of the application to an inter parties hearing, to be dealt with at the beginning of the substantive hearing. She also ordered the appellant and Mr Ollennu to attend the hearing for the purposes of cross- examination should the application be granted in relation to the Inspector. It subsequently transpired that Mr Ollennu could not attend on 1 March, but on that date the matter came before HHJ Bird sitting as a Judge of the High Court, who heard submissions on the Interlocutory application. He granted it, and adjourned the substantive application for hearing on another day, in accordance with his decision. Thus the matter came before me, with the parties ready for oral examination (including cross-examination) of the appellant, Mr Ollennu her Counsel at the inquiry, and the Inspector Mr Hammond.

The scope of the evidence in these proceedings

[25]In the circumstances, it was my task to follow Judge Bird’s decision, not to question it but in view of the energy subsequently expended by the parties on what it was thought he had permitted, it is right to look at the proceedings before him and his decision [2018] EWHC 700 (Admin). At [6] he summarised Mr Parker’s primary submission on behalf of the Respondent as that:
“I should only consider the application for cross-examination if I am satisfied that the failure to admit the letter and the bank statements was material to the outcome of the appeal”
[26]He was referred to the decision of Laws J (as he then was) in Richard Read (Transport Ltd) v Secretary of State for the Environment [1979] LGR 689 and to James v Secretary of State for Wales (1995) 70 P & CR 211. He appears not to have been referred to R (Jedwell) v Denbyshire CC [2016] PTSR 715. He then embarked on a study of the extra material:
“[15] In my judgment, having considered the bank statements and, indeed, the far from perfect schedule to which I was referred, I have been driven to the conclusion that the bank statements are potentially relevant and a consideration of them might lead to a different conclusion to that reached by the Inspector. I come to that conclusion even in the context of this case where I accept, with the benefits of Mr Parker’s submissions, that the evidence as it stood was piled high against the Appellant. [16] It seems to me to be important, having regard to the bank statements, that they show regular monthly payments of the same sums of money over time, with references on occasion to the names of individuals said to be tenants. The bank statements go back to 2007, and Mr Ruvin, for example, is cited as the payee of rent in 2010. The regular occurrence of the payments at times which one might expect to be broadly commensurate with rent payments in respect of named tenants, in my judgment, means that those bank statements could not simply be dismissed as irrelevant. Whilst I accept Mr Parker’s points that the tenant references are not definitive, they have the advantage of being contemporaneous to the point of payment. There is some correlation between the bank statements and the letter listing occupants.”

The Judge concluded as follows:

“[19] It follows from the above that I am not satisfied that the evidence which lies at the heart of the appeal is immaterial and I am not satisfied that the Inspector would have reached the same decision if the bank statements and the letter were admitted. … [21] … Given my conclusion that matters for resolution are material, I have come to the conclusion that it clearly is in the interests of justice that there be cross-examination. I therefore grant permission for such cross-examination.” “[19] It follows from the above that I am not satisfied that the evidence which lies at the heart of the appeal is immaterial and I am not satisfied that the Inspector would have reached the same decision if the bank statements and the letter were admitted. … [21] … Given my conclusion that matters for resolution are material, I have come to the conclusion that it clearly is in the interests of justice that there be cross-examination. I therefore grant permission for such cross-examination.”
[27]The effect of that, and the discussion between Counsel and the Judge after the judgment, was that Counsel appeared before me under the impression that the hearing should involve a wide-ranging examination of the evidence before the Inspector, the extra material, and the question whether the extra material would or might have made a difference to the Inspector’s decision, as well as the questions raised by the grounds about the conduct of the Inquiry. Bearing in mind, however, the matters which were actually before me as a result of the grounds, and the limitations on an appeal of this nature, which I have already set out, it is clear that the parties were misled: as a result much of the evidence and submissions at the hearing was misplaced and has no part in this judgment. It is for that reason that I need to explain why I was not able to take the expansive view that Judge Bird had taken of the matter.[28]The first difficulty is this. I note that at para [6] of his judgment, the Judge referred to the point as Mr Parker’s primary point, but there is no reference to any other submissions that may have been made as to the scope of the Court’s consideration of the material. The problem is that the one point identified by the judge is an asymmetrical one.[29]Often it is a complete answer to a public law claim or application that if there were some error it could not have made a difference to the outcome reflected in the decision. But it does not follow that if it cannot be said that the outcome would have been the same in any event, the claim or application succeeds. In this sense the detection of a possibility of a different outcome may be seen as a necessary factor for the claim or outcome to succeed; but it is not a sufficient factor. If the claim or application is not ruled out by this test, it can nevertheless succeed only by the application of whatever legal principles apply to it.[30]The legal principles applying to this claim, and hence to the Interlocutory application, are those applying to all appeals under section 289. The approach to an application to cross-examine the decision-maker is indeed set out in the cases to which the judge referred and in Jedwell. The general position remains that it is undesirable to order cross-examination of a person holding quasi- judicial office; and if the answer to the question is to be found in the written evidence, oral evidence will not be necessary anyway. Cross-examination was ordered in Jones because it was necessary in order to address conflicts in the written evidence. In Jedwell the Court of Appeal said that whether cross-examination is necessary will depend on the nature of the issue and is likely to remain rare. It must be right to add that the tests for deciding whether cross-examination should be allowed, as found in the authorities, need to be applied not in the abstract but with a clear view of the nature of the proceedings before the Court in which it is said that a cross-examination is necessary.[31]In the present case the issue raised by the grounds was not the impact or potential impact that the extra material would or might have had on the Inspector’s decision. That could not have been the subject of the grounds, because section 289 does not give scope for an appeal on the merits. The questions raised by the grounds in this case go to the procedure at the Inquiry and any oral evidence would need to be justified by its potential ability to throw light on what happened at the Inquiry and, by doing so, to assist in the resolution of the grounds before the Court.[32]By looking not at that issue but at the content and potential impact of the extra material, as he was clearly invited to do by both Counsel, the Judge appears, with the greatest respect, to have lost sight of both the grounds themselves and the limitations of a section 289 appeal. This is apparent in both his thought processes as set out in the judgment as cited above and in the post-judgment discussion. The primary question was in reality whether the Inspector erred in refusing to consider the extra material. If and only if he made that error could it be right to consider whether the extra material might make a difference to the outcome. If the answer to the latter question had been in the negative, the error might not be material. But the Judge’s conclusion that the latter question should be answered in the affirmative should have led him to consider the extent to which oral evidence would assist in answering the first question. Instead, the Judge appears to have concluded that the affirmative answer to the latter question resolved the application in the appellant’s favour without any specific consideration of the need to show an error of law by the Inspector.[33]The difficulties caused by the loss of focus are exemplified in what took place after judgment was given. Mr Parker is recorded as having said this:
“Obviously when we come to cross-examination, there will be questions which I would or might be able to ask Mrs Benson and Mr Ollennu in relation to some of the discrepancies and inconsistencies in the bank statements which might further provide the Court with assistance in relation to their usefulness to any future Inspector. Now I would just ask for an indication from My Lord whether you would consider those sorts of questions to be appropriate, or given your findings in relation to my submissions this morning whether … that issue is really one that you would consider to have been decided.”
[34]The judge responded in part by saying that some of the observations he had made “might cause an Inspector to see the bank statements as corroboration for a testimony which might otherwise be unsatisfactory”, and later said this:
“I think I would say with great respect, it is obvious, isn’t it, that everybody has to be cross-examined, if one has to be cross-examined, which was a point I raised, and you both answered this morning. But I think really at this stage the question really is does the cross-examination simply go to the issue raised in the appeal or does it, as would normally be the case in cross-examination actually mean that one can cross-examine on anything that may assist in the resolution of the appeal? I think we have to recall that it is not a trial and so it is not a general fact-finding exercise but within the parameters of the primary points being those raised in the appeal I do not think it would be proper at this stage for me to limit where cross-examination goes ….”
[35]It seems to me that whatever the Judge had intended, he could not by his order expand the Court’s permissible role under section 289. That is why, although the hearing was in a sense governed by the Judge’s procedural decision, my judgment has to be confined to the issues before the Court in this or any other appeal under section 289.[36]Following Judge Bird’s decision, Ms Foster thought that it was open to her to cross-examine the Planning Inspector on what his view would have been if he had had the extra material before him and whether that would have made a difference to the outcome of the Inquiry. I refused her permission to ask questions to that effect. On the other hand, evidence about what had actually happened at the Inquiry was central to the grounds and clearly admissible. Because of the history of the case and the terms of Judge Bird’s decision and the apparent reasons behind it, and because of the way in which in the light of that decision the parties have prepared the case, I allowed de bene esse argument and supporting evidence on the potential impact of the extra material that without committing the Court to go beyond the proper ambit of the present appeal.[37]Thus, I had before me:(i) the evidence about the occupancy of the annex that had been produced in compliance with the procedure rules and prior to the beginning of the Inquiry, limited to the Respondent’s statement of case and Mr Benson’s two letters, the content and effect of which is adequately summarised by the Inspector in his decision;(ii) the 38-page bundle which was produced by Mr Ollennu on behalf of Mrs Benson at the Inquiry, and which the Inspector allowed to be adduced, giving the Local Planning Authority’s representative time to read it before the Inquiry continued, the effect of which is also summarised in the Inspector’s decision;(iii) the extra material, which consists of over 250 pages of bank statements, and a printed copy of a letter from Paul Ruvin saying that he lived at the “studio flat rented out by Juliet Benson at 113 Hillside Avenue, Borehamwood, Hertfordshire, WV6 1HH between January 2010 – January 2013”; the letter invites the reader to get in touch with him; it bears a copy of a manuscript signature, but is not dated; the entire letter is available only as a printed attachment to an email Mrs Benson said she received shortly before the Inquiry began; before me, but not, I think, available at the time of the Inquiry, is what purports to be a typed summary of relevant entries in the bank statement, which does not appear to be entirely accurate, and which contains no justification for the attribution of unattributed payments to rent for the annex;(iv) written and oral evidence, the latter tested under cross-examination, from the Inspector, Mrs Benson and Mr Ollennu about what happened at the Inquiry itself; and(v) a certain amount of miscellaneous further evidence.[38]Following the resolution of preliminary matters, the hearing of the oral evidence occupied the remainder of a court day. I heard submissions later in the same week. The hand-down of this judgment has been delayed to a date convenient to both Counsel, at their request.

Findings of Fact

[39]Despite the scope of the evidence and submissions before me, and despite Judge Bird’s decision, the Court’s task remains that set out above; and I am therefore primarily, and probably solely, concerned with whether there was, either at the Inquiry or in the Inspector’s decision or in a combination of the two, some defect of justice amounting to an error of law justifying the quashing of the Inspector’s decision. In that context, the assessment of the claim in the grounds that during the hearing one or more applications were made for further evidence to be admitted, and that the application or applications were not properly dealt with by the Inspector, has to be the starting point. It is clearly for the appellant to establish the facts upon which she relies.[40]In determining exactly what happened at the Inquiry I was not greatly assisted by very much of the oral evidence.[41]As I have already indicated, the appellant’s evidence was led on the substantive impact of the extra material or the evidence as a whole including the extra material, as well as on procedure at the Inquiry. For the purposes of these proceedings the crucial assertion is that she herself made an application, and her Counsel later applied on her behalf, for the extra material to be admitted as evidence. Because of the history I have set out, however, her evidence ranged over a number of other matters going to the history of the annex and the documentary evidence for that history. In considering the credibility of her assertion about what happened at the Inquiry I consider her evidence as a whole.[42]Amongst the features of that evidence which cause difficulty despite the opportunity she had at the hearing to explain the defects are the following.[43]The numerous discrepancies between the alleged histories of occupation to be derived from the documents from various sources and her oral evidence, including in particular the varying dates of the alleged tenancies, remain almost entirely unexplained. There was still no explanation of the letter from the appellant’s husband, who apparently occupies the principal house with her, other than a note of an assertion she made during the Inquiry that “it was a big mistake”. There was no explanation for the provenance of the Ruvin letter or its arrival, apparently a few hours before the Inquiry. There was no explanation of the lack of payments to the agent, who on the face of the documents appears to have acted for Mrs Benson and her husband over a number of years in securing tenants, and was said by Mrs Benson during the course of the Inquiry to have taken responsibility for checking the identification of the tenants. There is no explanation for the absence of the signature of Ms Moore or her guarantor on what is said to be the landlord’s copy of her executed tenancy agreement. It is clear that there is no suggestion that Mrs Benson has at any stage been able to produce evidence that the substantial amounts that she claims were paid to her and/or her husband as rent have been the subject of any assessment for Income Tax. I asked her about Council Tax: although it appears that council tax has been paid recently, the position before that appears to have been that she was not very concerned to ensure that it was paid in respect of the separate dwellings she claims was being let. So far as concerns the materials prepared for these proceedings, in addition to the not entirely accurate analysis of the bank statements to which I have already referred, Mrs Benson had arranged for the preparation of, and produced, a purported transcript of Mr Ollennu’s note, that was in places wildly inaccurate. In my judgment the appellant’s evidence is not a reliable guide to past events, and I decline to make findings of fact, including findings about what happened at the Inquiry, on the basis of her assertions and evidence.[44]Her conduct of the appeal to the Inspector is also of relevance in this context. There is no explanation of her decision to provide no evidence prior to the inquiry, in contravention of the procedure rules. There is no explanation of why she did not provide the extra material at the same time as the 38-page bundle, save for an assertion in one of her witness statements that she did not appreciate that it might be important. Her neglect of the requirements of the procedure rules, and the assertion on her behalf at the beginning of the Inquiry that her evidence ought nevertheless be admitted and that its admission would do no injustice to the Local Planning Authority, shows in my judgment that she was not prepared to cooperate with the general procedure in relation to the Inquiry. Her claim that the Inspector’s conduct of the Inquiry was unlawful has to be seen in that light.[45]The Inspector’s evidence seemed to develop in the telling. The second statement is more detailed than the first, and his oral evidence was more detailed still. I do not suppose for a moment that he was doing anything other than to try to remember what happened, prompted as he was at various stages by the assertions made by the appellant in her evidence and Mr Ollennu in his. In his oral evidence, he appeared to recall that the Ruvin letter was “in part read out”, which had not been the subject of previous mention. As Judge Bird noted in his review of the substantive material, the fact that the Inspector refused to admit into evidence material the contents of which he obviously partly knew, may require some explanation. I do not find it at all easy to derive from his evidence, written or oral, and even when taken in combination with his contemporaneous note, any very clear view about the contested incidents. On the one hand, they are denied, and on the other partly admitted, for example in his first witness statement at para [8] he appears to accept that there was “another” (his inverted commas) attempt to adduce the bank statements, but that “this could not be justified”, which appears to indicate an application and a decision on it, but I am far from clear that he maintained the same position in his oral evidence.[46]Mr Ashitey Ollennu’s evidence I regard as largely reliable. It was he who provided the explanation of what happened during the appellant’s evidence at the Inquiry which I adopt. I regard as important what he also said about his own view at the end of the Inquiry, which was that he was not aware of any perception of injustice as the hearing closed, because he thought that there was no dispute that the bank statements did say what Mrs Benson had in her oral evidence asserted that they said. He became concerned only when he read the decision, which seemed to undermine that assumption. Mr Ollennu’s lack of contemporaneous concern about the conduct of the Inquiry has implications which I draw on below. But Mr Ollennu was not wholly accurate in his recollection. Although I think he is more likely to be correct on the details relating to the break for lunch (on which his evidence conflicted with that of the Inspector), it seems that his statement (with which Mrs Benson agreed) that the Inspector was making a sound recording of the Inquiry must be simply wrong. I do not regard either of these points as important, although both were canvassed at the hearing.[47]On the basis of the evidence before me the findings of fact that I make on the matters relevant to these proceedings are as follows. The Inspector opened the Inquiry. At that stage, there was no written evidence, and no witness statement supporting the appellant’s case. Mr Ollennu produced a 38-page bundle, and made an application that it should be admitted, giving reasons, which included that what was being said, and was to be supported by the contents of the bundle, was precisely what had been said at all stages, that the Respondent was fully aware of that, even if this would be the first opportunity to see the documents, and that the interest of justice would be served by the admission of this bundle, albeit late. The Respondent objected, but the Inspector, exercising his discretion in regulating the conduct of the Inquiry, allowed the material to be admitted, despite the gross breach of the procedure rules. The Inspector then adjourned the Inquiry to allow the Respondent’s representative to mull over the material.[48]After that pause, the Inquiry was resumed. The appellant gave evidence in chief and was cross-examined by Miss Crowdy for the Respondent. That cross-examination was, not surprisingly, directed to the detailed evidence of what was said to be a series of tenancies of the annex, which had been provided only that morning. No doubt the cross-examination explored the discrepancies between the original statement by Mr Benson, the agent’s statement, and the leases. When pressed on dates, Mrs Benson referred to documents available to her in a folder. Miss Crowdy asked what those documents were and was told that they were bank statements, recording payments of rent into her and her husband’s joint account, which helped her remember the dates of the various tenancies. At some point (this is where I particularly adopt Mr Ollennu’s evidence) Mrs Benson said to Miss Crowdy “you can see the statements if you want to”, and Miss Crowdy said that she did not need to do so.[49]So far as the first alleged application to adduce the statements as evidence is concerned, it seems to me that that is overwhelmingly likely to be what happened, and that no direct application was made to the Inspector. The documents were simply offered as available for examination. The fact that the documents in question simply showed payments, albeit payments attributed in many cases to a person whose name appeared on one of the newly-produced leases, was apparent to the Inspector.[50]At some stage also, the Inspector no doubt observed that the bank statements could not provide evidence of anything other than payment, and in particular could not provide evidence of occupancy of any particular premises. Mrs Benson and Mr Ollennu both state categorically that Mrs Benson did not “accept” that the evidence could have only that limited impact. I am perfectly content to assume that the Inspector misinterpreted a lack of response to his observation, but it is not said that anybody substantively countered it. Whether or not Mrs Benson and Mr Ollennu accepted it is beside the point, because in the absence of contrary argument it was clearly a judgment he was entitled to make in his decision and all the more so as he had given advance notice of it at the Inquiry itself.[51]It also seems right to point out that, bearing in mind that Mrs Benson was represented, it would be extremely surprising if the Inspector was expected to deal formally with an application for the admission of further evidence at this late stage, made by Mrs Benson and not by her representative.[52]So far as concerns the Ruvin letter, Mr Ollennu records it being mentioned somewhere in the middle of the cross-examination of Mrs Benson, and his notes confirm that, marked as they are with his observation that he would need to re-examine on it. It appears that Mrs Benson was referring simultaneously to two different alleged tenants, that she gave two different periods of time for the tenancy of Mr Ruvin, and that she then referred to having a letter from him. I expect that at that point everybody had a look at the letter, and that is how the Inspector came to know about its contents.[53]At this point it seems to me that the extra material was perfectly properly regarded as material which Mrs Benson was using, in her evidence, to refresh her memory. It had not been produced in accordance with the procedure rules, it had not even been the subject of the application made at the beginning of the Inquiry; but in giving her oral evidence Mrs Benson had referred to it, without objection from either Miss Crowdy or the Inspector.[54]The second episode (if I may so term it) in relation to the extra material occurred later in the hearing. The Inspector and Mr Ollennu differ on whether all the evidence had by then been taken: it depends on precisely when the Inquiry broke for lunch and the site visit. As I read the evidence, however, there can be no doubt that Mrs Benson’s oral evidence had concluded. Mr Ollennu says that, on instruction from Mrs Benson, he formally offered to tender the extra material as evidence, and received the answer “no”. Evidently, judging by his own impression of the lack of unfairness at the hearing itself, to which I referred earlier, he was content on behalf of the appellant with that response. As he explained in his evidence before me, he assumed that that meant that the Inspector did not need to see the statements because he did not question Mrs Benson’s reading of them.[55]What is absolutely clear is that it is not asserted that there was, either during Mrs Benson’s evidence or subsequently, an application to adduce further evidence which resembled in any way the application made in relation to the 38-page bundle at the beginning of the hearing. That earlier application demonstrates that Mr Ollennu as Mrs Benson’s representative knew what would be needed in order to persuade the Inspector to admit late evidence: indeed, in view of Mr Ollennu’s experience, it is obvious in any event that he would know what was required. In relation to any further documents, both he and Mrs Benson would of course be aware that the Inspector had already extended a considerable advantage to them and that even more powerful reasons were likely to need to be asserted in relation to further additional evidence. There was, if possible, an even greater need to meet the requirements of paragraph 12 of Annex D to the Procedural Guide (see para 12 above). The extra material consisted, as I have said, of 250 pages of documents, which would obviously need careful examination and analysis, and which if produced at this stage, the Local Planning Authority would need a proper opportunity to consider and to reconcile with the written evidence so recently admitted. Not only is there no assertion that any properly supported application was made other than the one during the first few minutes of the Inquiry: there is not the slightest evidential support for any such suggestion either.

Discussion and Conclusions

[56]My conclusion is that this appeal fails. There are several routes, but they all lead to the same conclusion, as follows:[57]First, it has always been asserted by the Respondent that the Inspector’s conclusion was inevitable on the basis of his analysis of the four years prior to the issue of the Enforcement Notice, contained in particular in the latter part of para [18] and para [19] of his decision. The findings of fact on which the conclusions in those paras are based are fully supported by evidence, from Mr Benson’s letter onwards, through Mrs Benson’s evidence and including the evidence from the agent. Nothing in the extra material could have affected this. On the appellant’s own evidence there have at various times, including in the last four years, been times when the annex has been occupied with the house and not as a separate dwelling. The Inspector’s conclusion as to the significance of those periods is, firstly, a matter of planning judgment for him, and, secondly, something which has not been challenged.[58]Ms Foster attempted, in her closing submissions, to raise what amounted to a new ground of appeal in relation to those paragraphs. She submitted that if the use had lasted for a period of four years it would have become unenforceable and hence within the meaning of the Act “lawful” (See section 191(2)), and that under those circumstances a temporary cessation in the use would not cause the entitlement to be lost. I reject that argument, on the basis of the dicta I set above from Thurock and Fairstate. If there was, as the Inspector found, a material change of use back to occupation with the principal house during the period of four years before the Enforcement Notice, time would essentially begin to run again from the re-commencement of use as a separate dwelling.[59]In fact, bearing in mind the evidence that there were numerous unrecorded periods of use of the annex with the principal house, it is difficult to see that there was evidence before the Inspector which would have enabled him to find any continuous period of four years during which the unlawful use was maintained: certainly, no such period appears to have been identified by Mrs Benson or on her behalf. Be that as it may, the Inspector’s conclusions in relation to the four years before the Enforcement Notice are sufficient of themselves to justify his conclusion. On that basis the grounds were bound to fail, and the lengthy hearing of evidence was beside the point.[60]Secondly, examining the evidence I have done, I conclude that the assertion of fact that there was an application made to the Inspector that the extra material should be adduced in evidence, as documentary evidence in addition to the documents already produced at the beginning of the hearing and the oral evidence taken at the hearing, is simply not made out. There was, on my findings, no such application. Mrs Benson used documents during her evidence in order to refresh her memory, as (certainly in the absence of any objection) she was entitled to do. Both she and Mr Ollennu were happy for the documents to be seen, copied or checked, but neither of them made any formal application to have them admitted into evidence. There having been no application, there was no need for the Inspector to respond to an application.[61]Thirdly, if the offer to make the documents available is to be interpreted as an application to have them admitted into evidence, it was an application that was unsupported by any reason why the documents should be admitted at that late stage. The appellant had already produced the bundle of documents on which it was said the case depended, late and in breach of the procedure rules; the Local Planning Authority had had an opportunity to examine those and had proceeded on the basis of them. Admission of further documents would necessarily cause a further adjournment and (particularly in relation to the second application to admit them) would have required the Respondent to have a further opportunity to cross-examine Mrs Benson after analysing the documents. In other words, to treat both sides fairly, the timetable of the Inquiry would have had to be completely disrupted, all because Mrs Benson and her representatives had not complied with the time limits set by the Rules. Without proper support of that sort there was in my judgment nothing to which the Inspector was required to give any substantive response, even if the tender is to be regarded as an application. Mr Ollennu’s contentment at the close of the Inquiry demonstrates that he did not think that an application had been properly made and improperly rejected.[62]Fourthly, it does not appear to me that the appellant lost anything by the non-admission of the extra material. As the Inspector’s decision shows, he appreciated what they were, and I cannot see that anything he said about them is properly subject to criticism. I have noted that in my view he was wrong to treat the appellant before him as having “accepted” that the documents did not establish what she said they establish, but whether or not she accepted it, that is the case. The observations that he made about the documents, from his knowledge of them, acquired at the hearing when Mrs Benson was deploying them, is in my judgment a perfectly adequate way of dealing with them, and there is no proper basis for saying that his treatment of them would have been materially different if they had been formally in evidence before him rather than merely being the material Mrs Benson used to refresh her memory.[63]Each of the reasons I have just given is in my judgment in itself sufficient to cause this challenge to fail, without any support from the reasons which follow it.[64]I return briefly to the issue of oral evidence. The questions which have, as appears to me, arisen in this appeal on the grounds pleaded were as follows.(i) Despite the grounds, were there aspects of the Inspector’s decision that were correct in law and unchallenged, were determinative of the appeal, and on which the extra material could have had no impact?(ii) If not, was there, as claimed in the grounds, an application to adduce the extra material as evidence?(iii) If so, what were the circumstances of the application, and how was it supported in terms of excusing the procedural defaults, explaining why it would be right to admit the extra materials so late, and dealing with the interests of justice?(iv) Bearing in mind that the Inspector obviously had some knowledge of some of the contents of the extra material, is there any reason to suppose that he would have reached a different view about it if it had been formally in evidence before him? Question (iv) would fall for consideration only if all of the other three questions had been answered in terms favourable to the appellant. Those questions could have been identified at an early stage of the proceedings. If they had been, it would have been appreciated that the only one to which the oral evidence that was the subject of the interlocutory application could contribute was the second, but the value of an affirmative answer to that question was bound to be reduced to nil by the complete lack of evidence capable of supporting an answer to the third question in the appellant’s favour.[65]An analysis along those lines or something approaching them at the time of the application to adduce oral evidence would, as it seems to me, have meant that a great deal of time and effort would have been saved. Realistically, the potential impact of the extra material, was not and could never have been the subject of these proceedings, because if the appellant had shown that the extra material was or should have been in evidence before the Inspector, or that the Inspector had erred in his treatment of a properly supported application to adduce it, there would have been little alternative to quashing the decision. The Court could not conceivably have re-made it. The lengthy analysis provided by Ms Foster and designed to show that the extra material could have assisted the appellant’s case may show that if the appellant’s case had been better prepared at the time demanded by the procedure rules it would have had a better chance of success, but that is not a factor to be taken into account in these proceedings.[66]For the reasons given in paragraphs [56] to [63], this appeal is dismissed.

Cited in 1 later judgment