Applicant constructing 6m high wall – Council serving enforcement notice requiring demolition of wall – Inspector holding public inquiry and dismissing applicant’s appeal against notice – Applicant appealing against inspector’s decision – Whether inspector considered applicant’s right to erect 2m fence – Whether applicant’s right put to inspector as principal argument – High Court allowing appeal
The applicant carried out excavations and constructed a 4m high concrete wall on three boundaries of his plot to the rear of 5 Ringly Drive, Whitefield, where a large house was under construction. On July 28 1997 the council served an enforcement notice on the applicant alleging a breach of planning control in respect of ” the construction of a concrete wall on the eastern, southern and part of the western boundary of the land and infilling operations of soil and sub-soil behind it on the land and the excavation of a large hole”. The notice required the wall to be demolished. The applicant appealed against the notice. After a public inquiry the inspector dismissed the appeal. The applicant appealed contending that the inspector had erred in law in failing to consider one of his principal arguments, namely that even if required to demolish the wall enforced against he was entitled to exercise his right pursuant to article 3(1) and Part 2 Class A to Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 to erect a 2m fence and that, accordingly, planning permission should at least have been given to retain the wall to a height of 2m. The Secretary of State for the Environment, while agreeing that the applicant’s right to construct a wall not exceeding 2m had not been put to the inspector as a principal argument, contended that, in any event, it was clear from the decision letter as a whole that the inspector had considered that right, but rejected the argument.
Held The application was allowed.
The applicant’s right to construct a wall not exceeding 2m under the 1995 Order was put to the inspector as a principal argument. However, the inspector had not considered it on that basis. He had concluded that it was not unreasonable for the council to remedy the breach by requiring the removal of the whole structure. He had not considered at all the planning merits of retaining the lower 2m against the background that it was manifestly expensive to demolish the 4m wall and then build a 2m wall. Therefore the inspector had failed to apply the principle that the existence of a valid planning permission was a vitally material consideration for an inspector to take into account: see Spackman v Wiltshire County Council [1977] 1 EGLR 121 and Save Britain’s Heritage v Secretary of State for the Environment [1991] 3 PLR 17.
Simon Bird (instructed by Sharpe Pritchard, London agents for Michael Levy, of Manchester) appeared for the appellant; John Litton (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; the second respondents, Bury Metropolitan Borough Council, did not appear and were not represented.
