Appeal against enforcement notice — Evidence — Claimant arguing immunity from enforcement by 10 years’ continuous use — Inspector rejecting claimant’s evidence — Whether fairness requiring claimant to be given opportunity of addressing concerns about evidence — Appeal dismissed
The second defendant council served an enforcement notice on the claimant requiring him to cease the use of certain premises as a commercial car-repair workshop. The claimant appealed on ground (d) of section 174 of the Town and Country Planning Act 1990, arguing that such use was immune from enforcement action because it had continued over a period of 10 years.
On his appeal, the claimant was legally represented and received advice from a planning consultant. His evidence included a number of invoices relating to a business that had been carried on by a previous occupant of the premises. The inspector noted that only two of these specifically referred to car-repair work, and that the witness evidence was inadequate. He concluded that the claimant had not discharged the burden of showing that a car-repair business had continued for 10 years.
The claimant appealed that decision under section 289 of the 1990 Act. He contended that the rules of natural justice had been breached because, prior to rejecting the evidence, the inspector should have given him an opportunity to address his concerns about it, in which case he could have produced further invoices. The claimant also submitted that the inspector’s conclusion on the evidence was perverse.
Held: The appeal was dismissed.
In the light of the evidence before him, it had not been perverse for the inspector to conclude that the claimant had not discharged the burden of showing that a car-repair business had continued for more than 10 years. Nor had any procedural unfairness arisen. The claimant, being professionally represented, must have been aware that, on a ground (d) appeal, the onus was upon him to make out his case on the balance of probabilities. The inspector had fairly recorded the claimant’s submission that the invoices constituted solid evidence establishing a continuous use at the site. The claimant could reasonably have anticipated that the inspector would not take that submission at face value, but would examine the evidence in some depth. The claimant’s real complaint was that, had the inspector raised concerns over the evidence relating to the invoices, the claimant could have produced more documentation. However, it had not been suggested to the inspector that the invoices produced were merely examples. The claimant had had every opportunity to place before the inquiry any evidence that he saw fit to provide. There was no reason for the inspector to suspect that the claimant might, if asked, have been able to produce more evidence, and there was no explanation as to why the claimant had not done so. Accordingly, no unfairness had arisen.
Richard Wald (instructed by Selwyn & Co) appeared for the claimant; Jonathan Auburn (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
