Applicants applying for planning permission – Council refusing application and issuing enforcement notice in relation to existing building – Applicant appealing claiming building substantially completed four years before enforcement notice – Inspector refusing appeal – Whether fresh evidence admissible – Whether inspector failed to give adequate reasons for conclusions – Appeal allowed
F was the owner of land at Arbour Hill, Dale Abbey, Derbyshire, on which W built a brick and breezeblock construction with a concrete tiled roof in December 1991 and January 1992. W built the building in the expectation or hope that it was permitted development under Class A of Part 6 of Schedule 2 to the Town and County Planning General Development Order 1988 under which planning permission was granted for the erection of a building reasonably necessary for the purposes of agriculture within a unit of works. The council assumed that the building was permitted development and took no action. However, subsequently, when the applicants, F and W, applied for planning permission to convert the building into a dwellinghouse, the council reconsidered the situation and issued an enforcement notice claiming that the building was in breach of planning control and requiring its demolition. The applicants appealed against: (1) the notice on grounds (c), (d) and (f) of section 172 of the Town and Country Planning Act 1990; and (2) the council’s refusal of planning permission. The inspector dismissed the appeal against the notice on all grounds and decided not to grant permission for the retention of the construction. He also dismissed the appeal against the refusal of planning permission. The applicants appealed to the High Court under ground (d) of the 1990 Act, namely that at the date when the notice was issued no enforcement action could be taken in respect of the breach of planning control because it fell within section 171(B), which stated that no action could be taken in relation to a breach of planning control where no enforcement had been taken after the period of four years beginning with the date on which the building operations were substantially completed.
Held The appeal was allowed.
1. Although fresh evidence could be adduced on an appeal to the High Court if it went to an issue of jurisdiction or procedure or if it was to show that the inspector had not properly summarised or had disregarded some material evidence, fresh evidence on primary facts upon which a substantive issue depended was not admissible. Therefore the evidence of a contractor on what was said at the inquiry in relation to the date when building material was delivered was not admissible because it went to the issue of whether the inspector had properly recorded the evidence.
2. However, the inspector had failed to give reasons for treating the dates of payments made to a building contractor as material and some explanation for the inspector’s reliance upon it was required. Since the applicants had been substantially prejudiced by that failure, the application was entitled to succeed.
Peter Village (instructed by Eversheds, of Nottingham) appeared for the applicants; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first respondent; Erewash Borough Council did not appear and were not represented.
