Enforcement notices – Change of use – Appeal – Appellant appealing against enforcement notices requiring non-agricultural use of property to cease – Appellant appealing successfully on certain issues – Appellant wanting reconsideration of whole of enforcement notice – Respondent’s planning inspector limiting rehearing to single issue giving rise to successful appeal – Whether respondent entitled to limit scope of rehearing – Appeal dismissed
The appellant’s property had been a dairy farm but had ceased to be used for agricultural purposes. The farm complex was divided into units with a variety of non-agricultural uses. The local planning authority (the interested party) granted lawful use certificates and planning permissions in respect of those uses but served enforcement notices requiring the cessation of other uses. The appellant appealed to the respondent against nine of the enforcement notices, relying on a number of grounds specified in section 174(2)(a) and (d) of the Town and Country Planning Act 1990. An inspector appointed by the respondent allowed two of the appeals but dismissed the remainder.
The appellant appealed to the High Court, under section 289 of the 1990 Act, against the inspector’s decision. The appeal was disposed of by a consent order, which provided for a rehearing of the issue in respect of section 174(2)(a), which the respondent conceded had been dealt with incorrectly. The appellant wanted the respondent’s planning inspector to hold a full rehearing on all the issues but the inspector decided to limit the rehearing of the appeal to the issue on which the appellant had succeeded in the section 289 appeal. The appellant’s application for judicial review of that decision was refused by the High Court: [2009] EWHC 234 (Admin).
The appellant appealed, arguing that when a matter was remitted for redetermination following a successful appeal under section 289, the respondent, or his inspector, was obliged to reconsider the entire enforcement notice appeal, including grounds that had not been the subject of the section 289 appeal.
Held: The appeal was dismissed.
The respondent had discretion as to how an enforcement notice appeal would be reheard following a successful appeal under section 289 and was not under any obligation to reconsider all the issues. It did not follow from the use of the word “rehearing” that the secretary of state was required to hear the enforcement notice appeal de novo and reach a fresh decision. What a rehearing required depended on the context: EI Du Pont de Nemours & Co v ST Dupont [2006] 1 WLR 2793 considered.
It would be surprising and unsatisfactory if a remittal following a successful section 289 appeal gave rise to the inflexible position contended for by the appellant. The existence of a discretion on the part of the respondent was consistent with the statute and rules.
Paragraph 22.6C(14) of the Part 52 Practice Direction, in line with section 289(5)(a) of the 1990 Act, provided that where the court was of the opinion that the decision appealed against under section 289 was erroneous in point of law, it would not set aside or vary that decision but would remit the matter to the secretary of state for rehearing and determination in accordance with the opinion of the court. The position was to be contrasted with that under section 288, where the court would normally quash a decision of the secretary of state if it were satisfied that the decision did not fall within the powers of the 1990 Act: section 288(5)(b).
Where a decision was quashed or set aside, the secretary of state would have to consider the case de novo and reach a fresh decision. However, there was no evident reason why the same approach should be required where the court did not set aside the erroneous decision but remitted the matter to the secretary of state for rehearing and determination in accordance with the opinion of the court. In that situation, the “rehearing” would need to be sufficient to enable the secretary of state to remedy the error identified by the court and to make a determination in accordance with the opinion of the court. 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. Thus, the scope of the rehearing was within the discretion of the secretary of state rather than being dictated by the statute or rules: Newbury District Council v Secretary of State for the Environment [1988] JPL 185 applied.
James Findlay QC and Ryan Kohli (instructed by Battens Solicitors) appeared for the appellant; Mark Beard (instructed by the Treasury Solicitor) appeared for the respondents; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
