Section 289 of the Town and Country Planning Act 1990 provides for a right of appeal to the High Court on a point of law against a decision made by the secretary of state on an enforcement notice appeal. On a successful section 289 appeal, the court’s power is limited to remitting the matter to the secretary of state, with the opinion of the court, for rehearing and determination by him. The principal question for the Court of Appeal in R (on the application of Perrett) v Secretary of State for Communities and Local Government [2009] EWCA Civ 1365; [2009] PLSCS 353 was whether, in such circumstances the secretary of state was bound to reconsider the entire enforcement notice appeal afresh.
In that case, a number of unsuccessful enforcement notice appeals had relied on ground (a), namely planning permission ought to be granted, and ground (d), immunity from enforcement, and further grounds. At the hearing of the section 289 appeal in the High Court, the secretary of state conceded that his inspector had erred in law by dealing with ground (a) in the enforcement notice appeals compendiously rather than separately. A consent order was made remitting the matters to the secretary of state for rehearing.
The new inspector decided to limit the rehearing to ground (a) alone. The appellant argued that the new inspector was obliged to reconsider the enforcement notice appeals in their entirety de novo. In other words, he could not be prevented from opening up a ground that was decided by the first inspector, even though it had not been raised in the section 289 appeal to the High Court. The appellant applied for judicial review of the new inspector’s decision, but the claim was dismissed. He appealed to the Court of Appeal.
Having considered the relevant statutory provisions, together with CPR 52 and the Part 52 practice direction, the Court of Appeal rejected the appellant’s argument holding that the secretary of state had a discretion as to how the enforcement notice appeals would be reheard and was not obliged to reconsider all the issues. Richards LJ stated that the rehearing would need to be sufficient to enable the secretary of state to remedy the error identified by the High Court and to make a determination in accordance with its opinion. In the absence of any further provision, however, it was up to the secretary of state to decide how to proceed with the task and which matters to consider in reaching the further determination.
John Martin is a freelance writer
