[2025] EWHC 1967 (Admin)

The particular grievance under ground 1 is that the inspector acted unfairly in including the condition removing permitted development rights, without warning of his change of mind, when he had raised the question of removing permitted development expressly saying that he did not think he had the power to do so in this case, and the parties agreed with him that the potential removal of such rights did not apply. The ground continues that the inspector changed his position and moved away from an agreed matter without warning and without an opportunity to address his proposal.

That is based on an extract of a transcript from an audio recording which Mr Singhal took of the hearing, with, it was not disputed, the inspector’s permission. The way the evidence about this was presented to the court was not wholly satisfactory. The fact that this was only an extract was raised in written submissions by the Secretary of State in these proceedings as long ago as October 2024 and repeated in Mr Riley-Smith’s submissions before me. However, he conceded that no direct request had been made of the Claimant for a full, or fuller, transcript and no application had been made for specific discovery of the recording. There was written evidence from the inspector whereby he said he did not recall making such a statement about permitted development rights and doubting that he would have made such a statement.

However, as I understood Mr Riley-Smith’s final position at the hearing before me, it was that the transcript is accepted to be accurate as far as it goes, but with the caveat remaining that it is only an extract. That records the inspector as referring to a scenario where the use of the main building reverts to that of a single dwelling and saying that that would be the only scenario where there could be a condition removing permitted development rights and asking whether that was permissible if the use reverts to lawful use. Counsel for both parties agreed that on that scenario such rights were pre-existing and could not be removed. The inspector then asked if the outbuilding were allowed, whether a condition preventing further outbuildings being erected could be opposed. Again the parties were agreed that if planning permission were given for the retention of the outbuilding as ancillary residential use, it could be constructed again in the future under permitted development right irrespective of such permission and the only question would be whether any further outbuilding is ancillary to the residential use.

It was not in dispute before me that on those scenarios those discussion accurately reflected the position that a condition could not be imposed removing permitted development rights. What that discussion did not expressly deal with is permutation 3, which is the one eventually preferred by the inspector, where the use reverts to that of a single dwelling house, planning permission is given for the rear extension, but not for the outbuilding. The challenge to this decision was not put on the basis that it was not permissible to attach such a condition in this scenario, but rather that the parties had no opportunity to deal with whether it was appropriate to do so on the facts of the present case.

Mr Riley-Smith makes a number of points in submitting that such an opportunity was not necessary. The first is that the authority in its statement of case before the inspector referred to an outcome where the rear extension alone were retained and said that removal of the outbuilding “in its entirety” would remove the authority’s objections in relation to the useable outdoor amenity space and would be an acceptable resolution. Although there was no express mention in the statement of the imposition of a condition removing permitted development rights, Mr Riley-Smith submits that this is implicit in the phrase “in its entirety” and that the only way that could be achieved is by removing permitted development rights. He further submits that the retention of the rear extension is of benefit to the Claimant, and even if there had been an opportunity to discuss the imposition of such a condition, there would be little if anything that the Claimant could say against it. He also submits that the Claimant would be entitled to revert to lawful rights by demolishing the rear extension and then relying on permitted development rights to build an outbuilding which is reasonably required for a purpose “incidental to the enjoyment” of the dwelling house.

However, the inspector found that the retention of the rear extension was acceptable in planning terms. By requiring demolition of the outbuilding and the removal of permitted development rights, the right of the Claimant to erect an outbuilding for a purpose “incidental to the enjoyment” of the dwelling is taken away, whatever the size and situation of such an outbuilding. The inspector considered a smaller outbuilding, in the context of other permutations, particularly in terms of making more usable external space available, and observed, as indicated above, that a smaller outbuilding than that existing could still form part of the matters stated in the notice.

It is true, as Mr Riley-Smith submits, that the inspector made no finding to that effect, but the reason for that is that he considered that he did not have enough details. He did not dismiss the acceptability of a smaller outbuilding on the ground, for example, that even that would give rise to the harm he identified in relation to permutation 2. Had he raised with the parties the imposition of such a condition, or a variant thereof, that would have given them an opportunity to deal with any such details. To what extent they would be able to do so is to some extent a matter of speculation, but in my judgment they should have been given the opportunity to do so, which may well have impacted upon the justification for the imposition of such a condition, or at least in the absolute terms in which it was in the event imposed.

This ground will only be made out if it shown that there was procedural unfairness which substantially prejudiced the Claimant (see George v Secretary of State for the Environment (1979) 77 LGR 689 and Hopkins Developments Limited v Secretary of State for Communities and Local Government [2014] PTSR 1145).In my judgment there was procedural unfairness in not giving the parties the opportunity to deal with the imposition of a condition relating to permitted development rights, which substantially prejudiced the Claimant.

Mr Riley-Smith also submits that this challenge should fail because the inspector would have reached the same conclusion without this omission, citing Simplex (GE) Holdings v. Secretary of State for the Environment [1998] 3 PLR 25. However, for the reasons given I do not accept that submission.