As you all know, if you have worked with us, we do love a bit of interesting case law here at Eldnar Consultancy. In the last month or so we have seen a couple of cases which have been of interest but, more specifically, which are of interest to some of the types of work which we regularly undertake on behalf of our clients – in this case rural workers dwellings and appeals in general.
The most interesting case, in our opinion, is one which re-iterates our advice to clients going to appeal that Inspectors will determine cases based upon the evidence which is before them. If you have ever spoken to Eleni about preparing an appeal, it is likely she will have repeated this comment at least three times within a short conversation! It is up you, the appellant, to provide the best evidence possible to be considered by an Inspector. This is well demonstrated within the case below.
A recent case saw a challenge to an appeal decision, where the appeal proposal sought temporary permission for three years for the siting of a mobile home to house a rural worker. The Council failed to determine the application, but had it done so, it said it would have refused on three grounds, one of which would have concerned the viability of the enterprise. Once, at appeal (a hearing), on the basis of non-determination, it was dismissed with the Inspector concluding that it was not demonstrated that the future enterprise has been planned on a sound financial basis with a reasonable prospect of delivering a sustainable profit by the end of the temporary period as required by the relevant Council policies.
The appeal dismissal was challenged via the Courts, originally on five grounds, but was granted permission to pursue one of these grounds of challenge. This particular ground was whether it was lawful for the Inspector to conclude that the claimant had failed to establish the financial viability of his business, as the relevant planning policy required. The Judge observed that financial viability was identified as a key issue by the Inspector in advance of the hearing and the Claimant was on notice that it would be discussed at that hearing.
The Council had instructed a witness to act on their behalf, the appellant did not. The Judge confirmed that it was reasonable for the Inspector, in dismissing that appeal, to conclude that the Council’s witness had expertise on which the Inspector could rely upon and that the Claimant’s decision not to be accompanied by his own witness (on cost grounds) was his choice. The Judge noted that there is a material difference between not having the opportunity to respond to the Council’s evidence and not having the requisite expertise to be able to rebut the Council’s evidence.
Most notably, the Claimant was found to have had opportunity, but that his real complaint was that he did not have on his side the expertise to convincingly rebut the Council’s comments which resulted in the appeal being dismissed. This was held, by the Judge in question, to be the Claimant’s choice and it did not amount to procedural unfairness for the Council to utilise expertise which the Claimant could have matched but chose not to. Ultimately, it was confirmed that the Inspector analysed evidence from both sides, which led to the appeal being dismissed and the subsequent court challenge also being dismissed.
This case highlights the importance of professional expertise within such applications (and appropriate preparation of appeal submissions) but also, and most importantly, it highlights the advice that we always give to our clients, which is that within appeals, the Inspector will consider the evidence which is before him/her and that this will be the basis upon which a decision is made on its own merits. The decision by the Court confirms that it is up to the Claimant/Appellant to maximise the opportunity to present evidence. In this case that should have been through matching the Council’s appropriately qualified expert/witness within the hearing discussions.
There are some cases where appellants, or applicants, can complete the planning process themselves which some lighter support and guidance and if this is the case, we will always tell you, and give you options to manage costs. Sometimes, however, cases are more complex and require greater involvement, albeit it is noted the costs can often add up but this case highlights that sometimes the use of professional advice/witnesses is wholly necessary and can key to the outcome of a proposal.
If you have any queries about the appeal process, going to appeal or supporting your submissions – get in touch through the contact page to see how we can help your project.