Second respondent appealing against two enforcement notices – Inspector allowing appeal in respect of first notice and varying second notice – Whether inspector’s conclusion perverse in light of evidence before him – Whether inspector having power to vary notice – Appeal allowed
Hambleton District Council (the appellants) served two enforcement notices upon the second respondent (A) alleging the unauthorised change of use of A’s land. The first notice complained of the siting upon the land of a residential caravan, and the second of a market trader’s caravan and refrigeration unit. A appealed against both notices.
In respect of the first notice, the inspector stated the main issue to be whether the siting of the residential caravan was essential for the purpose of agriculture. The inspector considered the criteria contained in para 114, Annex I to PPG 7, including criterion (d), which required that “the functional need (for the dwelling) could not be fulfilled by another dwelling on the unit, or any other existing accommodation in the area which is suitable and available for occupation by the workers concerned”. After considering A’s personal circumstances, namely his inability to purchase a property, the inspector concluded that “the need for accommodation could not be met by any other existing properties in the area”. He therefore allowed the appeal upon ground (a) in section 174(2) of the Town and Country Planning Act 1990.
In respect of the second notice, the inspector concluded that planning permission should not be granted. However, after considering ground (f) in section 174(2), he concluded that the steps required by the notice, requiring removal of the structures from the site, could be varied to permit the retention of the structures upon the condition that they be placed within an existing cattle shed.
The appellants appealed, pursuant to section 289 of the 1990 Act, upon the grounds, inter alia, that: (i) the inspector’s finding in relation to criterion (d) was flawed; and (ii) he had no power under the Act to vary the enforcement notice. In relation to the first ground, the appellants submitted that it was for A to demonstrate that there were no suitable and available properties nearby, and that A had failed to do so. It was submitted that the only evidence before the inspector was that of his own site visit, which was insufficient to support his findings, and that A’s personal circumstances were an immaterial consideration when applying criterion (d). In respect of the second ground, the appellants contended that the notice was drafted under section 173(4)(a), not 173(4)(b), of the 1990 Act, and that its purpose was, therefore, to remedy “the breach” of planning control, not to remedy “any injury to amenity which has been caused by the breach”. It was therefore submitted that the inspector was not entitled, under the terms of section 174(2)(f), to go on to consider whether the notice exceeded what was necessary to remedy any injury to amenity.
Held: The appeal was allowed.
1. There was no express burden of proof upon A to satisfy criterion (d). However, the inspector’s finding was flawed, as it could not be supported by the evidence before him. The only evidence before him was that of his own site visit, and it was impossible to see how he could have concluded that there was no suitable and available accommodation in the area for the workers concerned. His finding on criterion (d) was crucial. The matter was to be remitted.
2. The inspector was limited to considering whether the steps required by the notice were necessary to alleviate any breach of planning control. He was not entitled to go on and consider injury to amenity.
Eian Caws (instructed by Sharpe Pritchard) appeared for the appellant; Rupert Warren (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent did not appear and was not represented.
Sarah Addenbrooke, barrister
