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Enforcement notices

This page considers the question of what matters should be considered by the inspector after a successful challenge in the court to an appeal decision, the proper role of the reviewing court on a s289 appeal and a point on lawful use certificates.


Appeal

Re-hearing on appeal - limitation of matters to be considered

R (On the application of Perrett) v Secretary of State for Communities and Local Government
[2009] EWCA Civ 1365

Summary

This case demonstrates that when a successful challenge is made under s289 to an appeal decision in respect of an enforcement notice, and the matter is remitted for re-hearing and determination, the re-hearing can be limited to issues necessary to comply with the opinion of the court.

Facts

Mr Perrett had succeeded in a challenge under s289 of the Town and Country Planning Act 1990 against a decision of an inspector appointed by the Secretary of State dismissing his appeal against the issue of enforcement notices in respect of the change of use of outbuildings at his farm.

The appeal had been made pursuant to grounds (a) and (d) of s174 (2) of the 1990 Act. The Secretary of State had consented to judgment on the single ground that the inspector had dealt with ground (a) unlawfully and therefore the appeals were remitted to an inspector for reconsideration.

Following various arguments being raised regarding the scope of the re-hearing the inspector appointed to redetermine the appeal decided that it was appropriate only to reconsider the appeal in respect of ground (a) – on the basis that the flaw in the earlier decision making had only been in respect of that ground. Although he acknowledged that the decision had to be taken “de novo” he considered that there was no need to reopen unchallenged grounds and so limited the scope of the inquiry to a rehearing of the appeal on ground (a). The claimant brought judicial review proceedings contending that it was necessary for the inspector to hold a full re-hearing on all the issues.

The High Court held that it was not in the public interest to permit unchallenged findings to be reopened because of an error of law in relation to a discrete aspect of the decision-making. Mr Perrett appealed.

Decision

The Court of Appeal upheld the High Court’s decision on essentially the same reasoning holding that there was a distinction between a decision that was set aside and one that was remitted. Enforcement appeals result in remittal of the decision and not a quashing and hence it was open to the inspector to undertake a rehearing that was sufficient to remedy the error identified by the court.

The Court of Appeal explained and applied the decision in Newbury DC v Secretary of State for the Environment (1988) 55 P & CR 100 QBD which held that there was no inflexible rule as to how the matter had to be reheard. The Secretary of State was not restricted as a matter of law to correcting the error identified by the court, nor required as a matter of law to consider the case afresh. It was a matter for the Secretary of State’s discretion. Richards LJ at para 31:
    "When a matter is remitted to the Secretary of State under section 289, there is no obligation on the Secretary of State to consider the whole of the enforcement notice appeal de novo. The inspector's decision to exclude ground (d) from the scope of the inquiry cannot therefore be successfully impugned on the ground of inconsistency with such an obligation."
Comment

The previous challenge before the High Court against the original inspector’s decision had succeeded following the consent to judgment by the Secretary of State on ground (a). The Secretary of State had not consented on ground (d) and hence the inspector was able to contend that this matter did not require rehearing. This decision as upheld by the Court of Appeal will sound a note of caution to appellants challenging enforcement decisions under s289 of the 1990 Act to consider carefully the terms of any consent order offered by the Secretary of State to ensure that it will not subsequently limit the rehearing of the appeal.


The proper role of the reviewing court

Williams v Secretary of State for Communities and Local Government
[2013] EWCA Civ 958

Summary

The High Court had erred by going behind an Inspector’s findings of fact when quashing his decision.

Facts

Planning permission had been granted to convert a barn. It was agreed between the parties that the works in fact undertaken did not comply with that permission, and retrospective permission was sought and refused. The Council then issued an enforcement notice that alleged the erection of a new building, and required its demolition. The developer appealed contending that the works remained works of conversion, while the Council was of the view that a new building had been constructed. The Inspector upheld the enforcement notice finding that as a matter of fact and degree the previous building had been substantially demolished and replaced. The developer appealed under section 289 of the Town and Country Planning Act 1990.

Issues

There were two issues before the High Court:
  • Whether the alleged breach of planning control in the enforcement notice should have included the substantial demolition of the existing building as part of the single breach of planning control; and
  • Whether the requirement to demolish the building was excessive.
The Court found that the Inspector had erred in law in finding that the existing building had been demolished and that consequently a requirement to alter the new building so that it became that permitted under the planning permission was not available to him. As a result, it was held that his decision to require demolition was unreasonable. The Inspector’s decision was therefore quashed by the High Court and remitted for redetermination. The Council and Secretary of State appealed against that order.

The main issue on the appeal was the scope of an appeal against an enforcement notice under s289 of the Town and Country Planning Act 1990, the role of that reviewing court and the approach that court should take to an Inspector’s findings of fact.

Decision

The Court of Appeal emphasised that appeals under s289 are limited to points of law only, and cannot be used as a means of reviewing the merits of the Inspector’s decision. The Inspector had concluded that the breach of planning permission alleged in the enforcement notice had occurred, whereas the High Court had found that the planning permission essentially permitted what the applicant had done. The Court had therefore erred in going behind the Inspector’s findings of fact and evaluation. The High Court had also embellished the wording of the enforcement notice, contrary to authority that an enforcement notice should be construed in accordance with its precise words. It followed that the Court’s conclusions on the excessive nature of the remedial works was also incorrect.

Comment

This case serves as a (perhaps unusual) reminder of the limited role a court has under a s289 appeal (and indeed a s288 appeal). Judges and applicants alike should not undertake a review of the merits or the facts as found by the Inspector on appeals that are statutorily limited to points of law.


Lawful use certificates

Staffordshire County Council v Challinor
[2007] EWCA Civ 864.

The Court of Appeal held that an enforcement notice which had become effective after an unsuccessful appeal, or the time for appealing had expired, superseded lawful use rights even if they were the subject of a certificate of lawful use. The judge in the High Court had erred in law in deciding that the prohibition in s.285(1) of the Town and Country Planning Act 1990 on challenging an enforcement notice other than through the appeal provisions in s174 of the 1990 Act did not override the conclusive nature of the certificate of lawful use, and that activities within the scope of the certificate were not in breach of the enforcement notice. The certificate did not establish that the use had continued up to the date of the enforcement notice subsequently issued and if the certificate was not relied on as a ground of appeal against the enforcement notice, the latter superseded it.

The Court of Appeal stated that it was an oversimplification and a misinterpretation of the authorities to contend that an enforcement notice could not take away lawful use rights. Therefore, while an enforcement notice would be interpreted so as not to interfere with permitted development rights or with rights to use land for a purpose ancillary to a principal use which was itself not being enforced against, there was no general right to assert existing use rights at a time when the enforcement notice had come into effect after an unsuccessful appeal or in the absence of an appeal. It did not make any difference that existing rights had been the subject of a certificate, which only certified that the use was lawful at a particular point in time. The Court considered that a certified use could be abandoned and the decision in M&M (Land) Ltd v Secretary of State for Communities and Local Government [2007] EWHC 489 (Admin) was approved.

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