The Planning Act 2008 inserted into the Town and Country Planning Act 1990 (“the 1990 Act”) a new section 319A. This empowers the Secretary of State to determine the procedure for dealing with various appeals and applications, including planning and enforcement appeals. However, the power is actually exercised by PINS, taking into account a number of published criteria. For instance, in the case of enforcement appeals these are currently set out in its Procedural Guide to Enforcement Appeals – England (6 March 2014).
The Guide recommends, for instance, that written representations are appropriate if the issues are not complex, and the inspector is not likely to need to test the evidence by questioning, but that if such questioning may be needed a hearing would be the appropriate procedure. An appellant is advised, when making his appeal, to identify which appeal procedure he considers most appropriate, and to give reasons why.
In Chhokar v Secretary of State for Communities and Local Government [2014] EWHC 3155 (Admin) the local planning authority (“LPA”) had issued an enforcement notice alleging a breach of planning control by the appellant at his residential property, namely the unauthorised use of an attached building at the rear as a separate self-contained residential unit. The appellant appealed, principally on the ground that at the date when the notice was issued no enforcement action could be taken in respect of the breach as a result of the provisions of section 171B(2) of the 1990 Act. He opted for written representations.
The inspector dismissed the appeal, concluding that the appellant had not discharged the burden of proof upon him. The appellant then appealed to the High Court under section 289 of the 1990 Act. He contended that, because of the conflict of evidence between him and the LPA’s officer, the inspector should not have used the written representations procedure and that there should have been a hearing. He prayed in aid, in particular, Article 6.1 of the ECHR.
The court dismissed the appeal, holding that the inspector had not erred. The appellant had elected to proceed by means of written representations. He must have known at that point that the LPA disputed whether there had been continuous use of the attached building for a period of four years or more prior to the relevant date. He did not at any time notify the planning inspector that he had changed his mind. Insofar as he had any right to an oral hearing, he had unequivocally waived it. That waiver also defeated his argument based on Article 6.1
John Martin is a planning law consultant
