Planning appeal — Costs — Temporary timber structure erected on high street — Inspector ruling that council wrong to issue enforcement notice — Whether secretary of state wrong to award claimant’s costs — Claim allowed
The claimant took a licence of a terraced property in a main shopping street intending to sell crafts to visitors during the summer season. The property was in poor condition and the claimant erected a temporary timber structure to allow trading to start while work was being carried out on the main building. The local authority issued a change of use enforcement notice, requiring the claimant to discontinue the use of the property for retail purposes, together with an operations enforcement notice, requiring the removal of the unauthorised timber structure. The claimant complied with the stop notice, ceased trading and removed the temporary structure.
He appealed successfully against both enforcement notices, under section 174 of the Town and Country Planning Act 1990. The inspector had decided, without having considered the planning merits of the case, that planning control had not been breached. The claimant applied for his costs. The council’s appeal against that decision was dismissed: North Cornwall District Council v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2318. The defendant issued a “minded to” decision letter regarding costs to the effect that the council had been unreasonable, and that, accordingly, the defendant was minded to conclude that they should bear the claimant’s costs. However, before reaching a final decision, he invited the parties to make further representations, following which he refused the claimant’s application for costs.
The claimant applied for judicial review of that decision. He argued that the defendant had erred in finding that the council would probably not have acted differently, even if they had enquired into the claimant’s intentions with regard to the timber structure.
Held: The claim was allowed.
The claimant was entitled to the costs of his action. On the evidence, it was clear that the council’s main concern was for the timber structure to be removed. In accordance with the guidance in PPG 18, they should have asked whether the claimant would be prepared to comply with the law, before taking enforcement action. Had they done so, they would have discovered that he had intended to remove the timber structure when the refurbishment was complete, which was expected to be long before the enforcement notices were due to take effect. No reasonable authority would have taken enforcement action that would have taken effect after the construction complained of had been removed.
James Maurici (instructed by Bond Pearce, of Plymouth) appeared for the claimant; James Strachan (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
