Appeal against enforcement notice — Open market change of use — Inspector found no objections to change of use — Concern about car parking — Whether inspector should have considered planning agreement — Whether inspector gave adequate reasons for concluding that suitable conditions could not be framed — Appeal by local planning authority dismissed
Mr and Mrs Hobday are the owners of a site of a former cinema at High Street, Chatham. In January 1987 they sought planning permission for its use as an open market but, following the failure of the appellants, Rochester upon Medway City Council, to decide the planning application, they began to use the site as an open market. In April 1988 the council issued an enforcement notice alleging material change of use and Mr and Mrs Hobday’s appeal against that notice was dismissed. The inspector, while accepting that the refusal of planning permission could not generally be justified, and that access problems could be overcome with conditions, concluded that there were problems of car parking which could not be provided for by the imposition of planning conditions.
The council appealed against the decision of His Honour Judge Marder QC (sitting as a deputy judge of the High Court) who allowed an appeal against the decision of the Secretary of State for the Environment, by his inspector, who had dismissed an appeal against the enforcement notice.
Held The appeal was dismissed.
1. An inspector deciding an appeal against an enforcement notice is not generally speaking under a duty to find ways in which the appeal might succeed, which have not been suggested to him by or on behalf of the appellants. The inspector was therefore under no obligation to consider the use of a planning agreement under section 52 of the Town and Country Planning Act 1971 to resolve the car parking problem.
2. The inspector’s conclusion, that he did not consider that suitable conditions would be either reasonable, in terms of management, or enforceable, could not be understood. He did not explain why this was so and failed to show why it was not possible or desirable to impose a condition which would ensure that the “parking” objections to the development could be controlled. He had erred in law.
Stephen Hockman (instructed by Sharpe Pritchard) appeared for the appellants, Rochester upon Medway City Council; and Richard Gordon (instructed by Dawson Mason & Carr) appeared for the respondents. The first respondent to the original appeal, the Secretary of State for the Environment, did not appear and was not represented.
