Business premises – Change of use – Planning permission – Local planning authority issuing enforcement notice for unauthorised change of use – Planning inspector allowing appeal and granting planning permission for unlawful use – Authority applying to quash permission and appeal against quashing of enforcement notice – Whether inspector making material error of fact amounting to error of law – Whether inspector’s approach to appeal being manifestly unfair – Application granted – Appeal allowed
Units on a site that came within a defined employment area industrial location (DEA) in the relevant unitary development plan (UDP) were let for various commercial purposes. The second defendant, a community learning centre occupied a number of units, including units 1, 1a and 2. In July 2007, the claimants, as local planning authority, issued an enforcement notice against the second defendant alleging a breach of planning control; the authority claimed that the use of unit 1 had been changed from an industrial unit to a place of worship without the necessary planning permission.
The second defendant appealed against the notice to the first defendant, relying upon section 174(2)(a) of the Town and Country Planning Act 1990. The first defendant’s inspector visited the site and, on the basis of written representations, determined that, under section 38 of the Planning and Compulsory Purchase Act 2004, material considerations justified a departure from the UDP policy on activities carried out within DEAs. He concluded that nothing had been put before him to indicate that the educational use of Units 1a and 2 was unauthorised. Accordingly, he allowed the appeal, granted planning permission for the second defendant to use unit 1 as a place of worship and quashed the enforcement notice.
The claimants applied, under section 288 of the 1990 Act, to quash the inspector’s decision to grant planning permission and sought permission to appeal against the decision to quash the enforcement notice, under section 289, on the basis that the inspector had approached the appeal upon a manifestly unfair basis. The claimants contended, inter alia, that (i) the inspector had before him no evidence that enabled him to assume that the educational use of units 1a and 2 was authorised; and (ii) they had had no opportunity to make representations on the issue of the lawfulness of the use made of those units.
Held: The application was granted and the appeal allowed.
The planning inspector had made a material error of fact amounting to an error of law when he held that material considerations warranted a departure from the UDP and when he granted planning permission for the unauthorised use of unit 1 for education, training and worship.
The inspector had been wrong to say that he had no evidence to suggest that the educational use of units 1a and 2 was unauthorised. The second defendant’s appeal notice did not relate to anything other than the use of unit 1 for the purposes of education and worship. There was no evidence before the inspector regarding the lawfulness of the use of units 1a and 2. It followed that his conclusions could only have been based upon what he had seen on his site visit and, without inviting the claimants to make representations at that visit, that was unfair.
In any event, the decision of a previous inspector, upholding an enforcement notice and refusing planning permission for a change of use of unit 1 to a place of worship, should have indicated to the inspector that it was unlikely that the use of units 1a and 2 for educational purposes was lawful.
In the circumstances, the inspector’s approach to determining the appeal had been unfair. He should have raised the issue of units 1a and 2 after the site visit as a matter of elementary fairness and common sense given that the conclusion that the use was not unauthorised was fundamental to the remainder of his decision. The use of units 1a and 2 was a new point raised by the inspector and should have been put to the claimants.
Accordingly, the grant of planning permission would be quashed and the decision quashing the enforcement notice would also be quashed. The appeal against the enforcement notice would be revived and remitted for redetermination by the inspector.
Gregory Jones (instructed by the legal department of Haringey London Borough Council) appeared for the claimants; John Litton (instructed by the Treasury Solicitor) appeared for the first defendant.
Eileen O’Grady, barrister
