Enforcement notice — Claimant at inquiry failing to address matters of policy — Inspector failing to specifically address para 3.14 of PPG7 — Inspector identifying issues in para 3.14 in general terms — Inspector failing to suggest conditions to alleviate harm — Burden on the claimant to suggest conditions — Section 289 of Town and Country Planning Act 1990 — Appeal dismissed
The second defendant council issued a notice against the claimant (P), under section 172 of the Town and Country Planning Act 1990, relating to the changed use of P’s agricultural land. P’s appeal against the notice was later dismissed by an inspector.
P appealed, under section 289 of the 1990 Act, maintaining that the inspector had failed to consider specifically para 3.14 of PPG7 and that, although he had expressed concern about the potential effect of the changed use upon residential amenity, he had failed to consider the use of conditions to mitigate the damage. P further contended that the inspector had only identified specific concerns about poor visibility after his site inspection, thus denying P the opportunity to comment.
Held: The appeal was dismissed.
1. Paragraph 3.14 is not to be taken in isolation. It is cross referenced at a number of places in the policy document, and should therefore be taken as part of the policy in general. As such, it was clear that although the inspector had made no specific reference to para 3.14, he had considered the provisions contained within it. Those provisions were not part of the principal controversial issues at the original inquiry. The claimant did not raise matters of policy, or suggest conditions that might have alleviated the harm proposed: see Top Deck Holdings Ltd v Secretary of State for the Environment [1991] JPL 961.
2. The inspector’s concerns about traffic safety and access to the site were clearly identified at the earlier stages of the inquiry, and it was these concerns that prompted him to consider issues of visibility on his site visit. The claimant had had the chance to address this issue at the original inquiry. The court must have substantive evidence to consider, rather than mere assertions that the appellant would have made some (unspecified) submissions. The inspector’s decision may not have been well expressed but, overall, his decision was reasonable, and the claimant had not suffered any substantial unfairness.
John Dagg (instructed by Holmes and Hills, of Braintree) appeared for the claimant; Timothy Corner QC (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants, Madlon District Council, did not appear and were not represented.
Vivienne Lane, barrister
