Nestorova-Goremsandu v Secretary of State for Communities and Local Government [2010] EWHC 793 (Admin); [2010] PLSCS 106 provides a reminder of some practical issues that can arise in the case of an enforcement notice appeal. The appellant had constructed an extension to her bungalow without planning permission. In July 2008, the local planning authority (LPA) issued an enforcement notice requiring its demolition. The appellant appealed to the secretary of state, relying principally on the ground set out in section 174(2)(d) of the Town and Country Planning Act 1990, namely that at the date on which the enforcement notice was issued no enforcement action could be taken in respect of the alleged breach. She contended that the building operations had been substantially completed, within the meaning of section 171B(1) of the Act, more than four years before that date. Her case before the inspector was that they had been substantially completed by January 2002.
The inspector rejected the appeal, concluding that evidence showed the extension being constructed in late 2005 and nearing completion in September 2007. She relied on aerial photographs taken in 2003 and 2006, on site photographs taken in January 2006 and records of complaints to the LPA relating to the construction of the extension in December 2005 and January 2006. The appellant appealed to the High Court, under section 289 of the Act, contending in particular that the inspector’s finding was vitiated by a failure to refer in her decision letter to evidence from the appellant’s builder that he had repaired the roof of the extension in March 2004. The inspector had therefore failed to take into account a material consideration.
The court dismissed the appeal, holding that despite such a failure the decision should not be quashed because the secretary of state had satisfied the test of showing that the inspector would have reached the same conclusion in any event. She had found that the aerial photographs established that there was no extension on the site, contrary to the appellant’s case that the extension had been substantially completed by January 2002. The builder’s evidence did not undermine this. Moreover, that evidence was inconclusive as to the internal state of the extension, whereas the holistic approach laid down by the courts required that the entirety of the operations that the appellant originally contemplated and intended to carry out must have been materially completed.
John Martin is a freelance writer
