Appeal against enforcement notice — Claimant council appealing against inspector’s decision — Enforcement notice (and consequent appeal decision) made on false factual basis — Notice withdrawn — Correct procedure for disposing of council’s appeal — Appeal allowed
The claimant council served an enforcement notice against the second defendant in respect of an extension to his property that did not comply with the approved plans. The notice required, in effect, demolition of part of the extension so that it would either comply with the approved plans or fall within the permitted development rights in respect of the building. The second defendant appealed to the first defendant secretary of state. The inspector upheld the notice, albeit with certain amendments, after conducting the appeal on the basis that permitted development rights existed, allowing an extension of a certain size to be constructed without planning permission.
The council appealed under section 289 of the Town and Country Planning Act 1990. In the meantime, they conducted investigations that established that the permitted development rights in relation to the property had been exhausted. As a consequence, they had issued the enforcement notice on an entirely false factual basis and had thereby misled the inspector into conducting the appeal on a false basis. The council decided to withdraw the enforcement notice and issue a fresh one. An issue arose as to how their appeal should be disposed of. The council’s appeal would simply fall away once the enforcement notice was withdrawn, so that there was no need to remit the matter back to the inspector.
Held: The appeal was allowed.
The inspector’s appeal decision should not be left in limbo once the enforcement notice that led to it had been withdrawn. His decision should not be allowed to stand once it was acknowledged that he had, through no fault of his own, been misled as to the true factual position. The case was one where a decision had been taken that relied upon a fundamental error of fact that could be regarded as falling within the ambit of an error of law, because the decision maker had thereby taken account of an irrelevant consideration or failed to take account of a relevant one. In the circumstances, Ord 94.13(7) of the Rules of the Supreme Court required that the matter be remitted to the secretary of state for rehearing; the court was not given a discretion. However, given that the council had undertaken to withdraw the enforcement notice within 14 days, the secretary of state was not to take any steps by way of redetermining the appeal for that period. Ultimately, the enforcement notice would have been withdrawn, whereupon, on the secretary of state’s view, any appeal would fall away with the notice.
Eric Owen (instructed by Sharpe Pritchard) appeared for the claimants; Jonathan Auburn (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Sally Dobson, barrister
