Appeal against enforcement notice by written representations procedure – Appellant unable to meet deadline and respond to comments – Inspector dismissing appeal – Whether procedural error – Whether error constituted breach of natural justice – Appeal allowed
The appellant (B) owned land at Near Mount Farm, Huddersfield, which was the subject of an enforcement notice issued by the second respondents, Kirklees Metropolitan Borough Council (Kirklees). B appealed against the notice, inter alia, on the ground that the time-limit for enforcement action had passed. He relied upon Newbury District Council v Secretary of State for the Environment [1995] JPL 329 to support his submission that a four-year rule applied. The appeal was determined by an inspector under the written representations procedure. A site visit took place in July 1998, following which the inspector requested a more accurate plan. In August Kirklees submitted a revised enforcement notice plan and sent additional comments to the first respondent Secretary of State and to B. The planning inspectorate wrote to B and requested that any further comments be made by 16 September 1998. In reply, B stated that he was unable to meet that deadline but that there would be a response. On 24 September 1998 the inspector issued his decision letter, varying and correcting the notice and dismissing the appeal. The inspector relied upon a redetermination of Newbury (supra) to counter B’s representations upon the four-year point. Following the inspector’s decision, B wrote to the planning inspectorate, asking why it had failed to give an adequate period to respond to the comments. The planning inspectorate apologised for the procedural error but stated that, as the decision letter had been issued, the inspector was unable to consider any further representations. B sought to challenge the inspector’s decision, pursuant to section 289 of the Town and Country Planning Act 1990, on the ground that the inspector had acted in breach of natural justice, which had resulted in substantial prejudice to B.
Held: The appeal was allowed.
It was unfair on B that the decision letter was issued in little over a week. Applying the test in Robert Hitchin Ltd v Secretary of State for the Environment (1995) 72 P&CR 579, namely: “would a reasonable person viewing the matter objectively … consider that there was a risk that the procedure adopted … has resulted in injustice or unfairness?”, B suffered substantial prejudice in that he was denied an opportunity to rebut or comment on the inspector’s reliance upon the Newbury redetermination, which was an important factor in the case.
Richard Harwood (instructed by Ian Rees & Co) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sarah Addenbrooke, barrister