Van Dem Boomen & Anor, R (on the application of) v Ashford Borough Council & Anor

Van Dem Boomen & Anor, R (on the application of) v Ashford Borough Council & Anor

The Inspector's decision was procedurally unfair and in breach of natural justice because the determinative issue of converting the oast house for residential use was not fairly raised or notified to the claimants, depriving them of a fair opportunity to address it. The decision must be quashed. The costs decision was not perverse as the reasonableness of the Council's conduct is distinct from the merits of the planning obligation, and the Inspector applied the correct legal test.

Parties
Claimant: Mr HCL van Dem Boomen; Claimant: Mrs J-E van Dem Boomen; First Defendant: First Secretary of State; Second Defendant: Ashford Borough Council
Jurisdiction
England and Wales
Judgment Date
19 January 2007
Procedural Posture
Judicial Review and Statutory Appeal / Judgment After Hearing
Outcome
Section 288 application allowed; Judicial Review application dismissed; permission to appeal refused in both cases.
Legal Topics
Procedural Fairness, Natural Justice, Planning Permission, Costs Assessment
Administrative Law Planning Law Procedural Fairness Natural Justice Planning Permission Costs Assessment

Case Brief

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Parties

Mr HCL van Dem Boomen

Claimant

Mrs J-E van Dem Boomen

Claimant

First Secretary of State

First Defendant

Ashford Borough Council

Second Defendant

Procedural Posture

Judicial Review and Statutory Appeal / Judgment After Hearing

Legal Issues

  1. 1 Whether the Inspector's decision was procedurally unfair and in breach of natural justice
  2. 2 Whether the Inspector erred in considering the conversion of the oast house as an alternative to new build without giving parties fair notice
  3. 3 Whether the Council acted unreasonably in refusing planning permission and whether costs should be awarded

Ratio Decidendi

The Inspector's decision was procedurally unfair and in breach of natural justice because the determinative issue of converting the oast house for residential use was not fairly raised or notified to the claimants, depriving them of a fair opportunity to address it. The decision must be quashed. The costs decision was not perverse as the reasonableness of the Council's conduct is distinct from the merits of the planning obligation, and the Inspector applied the correct legal test.

Court Disposition

Section 288 application allowed; Judicial Review application dismissed; permission to appeal refused in both cases.

Orders

  • Inspector's decision quashed for breach of natural justice.
  • Claimants to pay First Defendant's costs of the Judicial Review, assessed at £3,726.