Breach of planning control — Construction of artificial sports pitch without planning permission — Enforcement notice issued requiring removal of pitch — Public inquiry — Inspector reporting that no evidence that sports centre unviable without pitch — Question of viability was material factor — Secretary of State dismissing appeal — High Court remitting decision for reconsideration
The applicant appealed under section 174(2)(a) and (f) of the Town and Country Planning Act 1990 against an enforcement notice issued by Trafford Borough Council. The breach of planning control alleged in the notice was the construction and laying out without planning permission of an artificial surface sports pitch of approximately 6,800 m2 together with footings and cables for lighting columns. The notice required cessation of use of the surface and its removal. A public inquiry was held into an appeal against the notice. The inspector identified the main issue as the effect of use of the artificial surface on the adjoining residents in terms of noise and disturbance having regard to the general support for sports facilities in local and national planning policies. The Secretary of State dismissed an appeal against the notice but the applicant appealed to the High Court. It argued that the inspector had determined that some level of use was acceptable, but failed to determine any appropriate level of use and decided that removal of the pitch was required but gave no adequate reasons why he reached that conclusion.
Held The decision was remitted to the Secretary of State for reconsideration.
1. Despite evidence that a requirement to remove the pitch might prejudice the future of the club, the inspector had made no reference to that evidence and proceeded on the basis that the club would continue in existence after removal of the surface. He reported that there was no evidence that the sports centre would become unviable. Consequently there had been a failure to take account of a material matter which affected the whole balance of the decision.
2. While it was well settled that decision letters should not be scrutinised as if they were statutes, the fact was that the inspector was reporting the absence of evidence on viability, not the quality of such evidence. There was no justification for reversing the clear meaning of the inspector’s words by inserting the word “conclusive” so as to qualify the word “evidence”.
3. Viability was a relevant issue in the circumstances that policy supported the provision of sports facilities; it was a material factor, bearing on the whole balance of the decision, which had not been taken into account by the inspector.
Robert Carnwath QC and John Litton (instructed by Sharpe Pritchard, London agents for Jones Maidment Wilson, of Altrincham) appeared for the appellants; David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
