Council serving enforcement notice upon claimant alleging change of use of agricultural land to mixed use – Claimant appealing against notice – Claimant contending mixed use carried on at the site for ten years or more – Inspector rejecting claimant’s unchallenged evidence – Inspector dismissing appeal – Whether inspector failing to give proper consideration to claimant’s evidence – Appeal allowed
In May 1998 the second defendant local planning authority (the council) issued an enforcement notice affecting the claimant’s land. The notice alleged, as the breach of planning control, “change of use of land from agriculture to mixed agriculture and storage of materials unassociated with agriculture”.
The claimant appealed against the enforcement notice. One ground of appeal was that, at the time the enforcement notice was issued, it was too late for the council to take enforcement action against the alleged breach of planning control, because the use had been carried on at the site for ten years or more. Accordingly, the inspector deciding the appeal had to determine whether or not the mixed use had commenced on the site on or before May 1988 and had continued to the date of the enforcement notice. The claimant and his witnesses gave evidence that, between 1986 and 1988, mixed use and ancillary activities had occurred at the site. That evidence went unchallenged by the council. However, the inspector found that the witnesses’ recollections were unreliable and that the claimant had failed to establish that mixed use began prior to 1988. He therefore dismissed the appeal.
The claimant appealed, pursuant to section 289 of the Town and Country Planning Act 1990, on the grounds that the inspector: (i) failed to give proper consideration to the evidence presented to him by the claimant; and (ii) gave inadequate reasons for dismissing the appeal.
Held: The appeal was allowed.
While the claimant’s evidence of the activity at the site between 1988 and 1990 was contradicted by that of the council, his evidence relating to the period 1986 to 1988 was unchallenged and uncontradicted. The inspector should, therefore, have given the clearest reasons for rejecting such evidence, but failed to do so. He failed to give proper consideration to the unchallenged evidence before him and failed to give adequate reasons for his determination. The matter was remitted to the inspector.
Timothy Comyn (instructed by Merriman White) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sarah Addenbrooke, barrister
