The review report Enforcing planning control (HMSO 1989), which was commissioned by the government and written by Robert Carnwath QC as he then was, is still referred to judicially. Its recommendations provided the foundation for the provisions in the Planning and Compensation Act 1991, which radically reformed the enforcement of planning control.
One recommendation was that a “sieve” should be introduced for appeals to the High Court, under section 289 of the Town and Country Planning Act 1990, against decisions made by the secretary of state on enforcement notice appeals. (This would reflect the permission stage in a claim for judicial review.)
The operative provision is now section 289(6) of the 1990 Act. Permission is required from the High Court, or from the High Court or the Court of Appeal in the case of a further appeal to the latter. There are no statutory criteria governing the exercise of the court’s discretion, but the intention is to filter out cases without merit. This requires a decision whether an arguable point of law is involved.
In Crosswait v Secretary of State for Communities and Local Government [2009] EWHC 2119 (Admin), the claimant sought permission to appeal against the decision of an inspector. The inspector had upheld an enforcement notice that alleged a material change of use of the claimant’s land from agricultural purposes to domestic residential curtilage. Although various grounds were raised before the inspector, the only ground of challenge that the claimant relied on before the court was that contained in section 174(2)(d) of the 1990 Act, namely that, at the date on which the enforcement notice was issued, no enforcement action could be taken in respect of the alleged breach of planning control.
The claimant had argued that the land had been used as an accretion to his garden for at least 10 years before the issue of the enforcement notice. (This argument was supported by his own evidence, evidence from the previous owner and photographic evidence.) He therefore enjoyed immunity from enforcement action. As a result, the inspector had not been entitled to reach the decision he had, and it was therefore flawed.
The secretary of state argued that the inspector had properly concluded that there had been a significant break in continuity during that period when the land had returned to rough pasture. (This was also based on photographic evidence, which was produced by the council and by a neighbour.)
The court concluded that any appeal would be hopeless. In the court’s view, the inspector had summarised the evidence fairly and it was open to him to find that there was a significant break in the continuity of garden or recreational use of the land in question. Accordingly, permission to appeal would be refused.
This case demonstrates the effectiveness of section 289(6) of the 1990 Act.
John Martin is a freelance writer
