As in the case of an appeal under section 78 of the Town and Country Planning Act 1990 against a decision of a local planning authority (“LPA”) in relation to a planning application, an appeal under section 174 of the 1990 Act against a decision of an LPA to issue an enforcement notice will be determined on the basis of written representation, at a hearing or by means of a public local inquiry. In all three instances, in addition to the relevant statutory requirements, the principles of fairness and natural justice will apply.
In Pitblado v Secretary of State for Communities and Local Government [2012] EWHC 3723 (Admin) the appellants appealed unsuccessfully under section 289 of the 1990 Act to the High Court against the decision of an inspector to uphold an enforcement notice. One of the appellants’ two contentions was that the inspector had adopted an unfair and prejudicial procedure at the hearing that had been held. (For some not entirely clear reason, the appellants had not attended the hearing, although they had been represented at it by a chartered town planner.) The court dismissed that argument, but usefully commented on the role and duties of an inspector in that context by reference to decided cases. The following principles are apparent.
(1) The absence of an accusatorial procedure at a hearing places an inquisitorial burden on the inspector. (2) This does not require the inspector to engage in a search for material not put before him. (3) However, he must play an enhanced role in order to resolve conflicts of evidence. (4) Furthermore, he must not arrive at a finding adverse to a party without having put the point to the party in question, or his witness. (5) Despite his duties, the inspector is entitled to rely upon a properly represented appellant to put the case fully to him. (6) Where the appellant is not so represented, there may be a stronger argument for the inspector playing a more interventionist role.
By way of reminder, an appeal under section 289 of the 1990 Act may only be brought with the permission of the court. Such an appeal is limited to a “point of law”. If the court finds the decision erroneous in law, it has no power to set it aside or to vary it. The matter has to be remitted to the Secretary of State for redetermination.
John Martin
