Council serving enforcement notice – Applicant appealing – Whether matter alleged in notice in fact occurring – Whether notice affecting existing use rights – Whether adequate reasons given – Appeal allowed
In February 1999 the second respondents, Malvern Hills District Council, served an enforcement notice in relation to the use of a former farmyard at Kerswell Green Farm, Kempsey. The notice concerned a Dutch barn, a small tractor shed, an enclosed Dutch barn-type building and a post-war agricultural building. It alleged that the buildings had been used for storage purposes in connection with various manufacturing activities and that the yard itself had been used for “manufacture, fabrication and repair of machinery and vehicles, storage in connection therewith and the parking of motor vehicles and the storage of a touring caravan”. The notice required that the activities cease within three months.
The applicant appealed against the notice on grounds (a), (b), (c), (d) and (f) of section 174(2) of the Town and Country Planning Act 1989. The inspector dismissed the appeal. The applicant appealed under section 189 of the Town and Country Planning Act 1990, contending that the inspector’s conclusions about the alleged use of the yard were inconsistent. It was further submitted that the inspector had erred both in her treatment of the existing use rights relating to the yard and in upholding the requirement that the use of the yard for “parking of motor vehicles” should cease.
Held: The appeal was allowed.
1. Although there was confusion in the inspector’s letter as to whether the use alleged had in fact occurred, the two conflicting conclusions could be reconciled by recognising that they fitted with the claimant’s case at the inquiry and could only be seen as accepting the basic case, namely that at the date of issue of the enforcement notice, the alleged use of the yard had been taking place.
2. It was not obvious that the existing use rights as found by the inspector would be protected from the effect of the enforcement notice. In view of the specific prohibition in the notice, it was not easy to see that the notice had not been meant to stop the yard from being used for any purpose ancillary to the lawful use of all its surrounding buildings, or for any ancillary purpose commonly found in such yards. The inspector had either acted beyond her power or failed to provide adequate reasons for her conclusion in relation to the existing use rights. She should have sought expressly to save existing use rights, or at least have explained more fully why that express saving was unnecessary.
3. Furthermore, the inspector had not given adequate reasons for her conclusions in relation to the evidence of witnesses and statutory declarations. Such reasons did not have to be extensive, but they had to provide a reasonable indication as to why the claimant’s case failed. The applicant was prejudiced by the inspector’s failure, in that it did not know whether the inspector’s appraisal contained misappreciation of the evidence or any other challengeable flaws. Accordingly, the matter was to be remitted for redetermination.
Alun Alesbury (instructed by Gordon Bancks & Co, of Pershore) appeared for the applicant; Timothy Corner (instructed by the Treasury Solicitor) appeared for the first respondent Secretary of State.
Thomas Elliott, barrister
