Appellant subject of enforcement notice – Inspector dismissing appeal against enforcement notice – Leave to appeal that decision granted on limited grounds – Appellant seeking to proceed on new factual evidence – Appeal dismissed
On October 18 1996 an enforcement notice was issued, which alleged breach of planning permission by the appellant by his unauthorised change of use of land and required the removal of the appellant’s vessel from the land. The first respondent’s inspector dismissed the appellant’s appeal against the enforcement notice. In March 1998 leave to appeal the inspector’s decision was granted on three limited grounds. First, that the inspector erred in law in concluding that the construction of an earth bund along the River Tamar could not be described as the erection of a gate, fence, wall or other means of enclosure permitted under Part 2 Class A of the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO). Second, the inspector reached a conclusion for which there was no supporting evidence. Third, having reached that erroneous conclusion, the inspector erred when he concluded that the retention of the vessel was not permitted under Part 4 of the GPDO. The appellant appealed to quash the inspector’s decision pursuant to section 289 of the Town and Country Planning Act 1990.
Held The appeal was dismissed.
The appellant sought to rely on a third affidavit, which presented the case in a way that had not been put to the inspector at the inquiry or at the site visit. It was correct to admit that affidavit evidence in so far as it dealt with what had been properly before the inspector. However, it was not to be used to establish facts that were not sought to be proved before the inspector: Clarke v Secretary of State for the Environment [1992] 2 EGLR 189 was relied upon. There was no basis for interfering with the inspector’s decision that the earth bund was not an enclosure. There was no question of the appellant having the benefit of Part 4 of the GPDO. Even if it had been possible to conclude that the bund was an enclosure, as a matter of discretion, the appeal would not have been permitted.
Marc Willers (instructed by Battens, of Yeovil) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment, Transport and the Regions; the second respondents, Caradon District Council, did not appear and were not represented.
Sarah Addenbrooke, barrister
