Leeds City Council, R (on the application of) v Secretary of State for Home Department

MR JUSTICE SULLIVAN: This is an appeal under section 289 of the Town and Country Planning Act 1990 against a decision of one of the first defendant's inspectors on an enforcement notice appeal. The inspector's decision letter is dated 27th May 2004.

The decision is concerned with the second defendant's appeal against an enforcement notice served by the claimant in respect of development at 61 High Ash Avenue, Leeds.

The breach of planning control alleged in the notice was the erection without planning permission of a front extension and front and rear facing dormer windows that did not comply with plans which had been approved pursuant to a planning application.

It is unnecessary to set out all the requirements of the notice in detail. In brief, what the council sought to achieve was the demolition of so much of the extension and the dormers that either the building would comply with the approved plans, alternatively it would be within what were then believed to be the permitted development rights in respect of the building.

Thus, for example, Step 3A required the demolition of the rear facing dormers:

The reference to 70 cubic metres is explained upon the basis that at the stage when the enforcement notice was served, that was the extent of the permitted development rights that the claimant believed to exist in relation to the property. That was the basis on which the inspector considered the matter.

The inspector considered the requirements of the notice and made his own calculations as to what would be appropriate in Step 3A.

As a result of his calculations as to what the permitted development rights in respect of this property would be, upon the same basis as the council had approached the matter, he reached the figure of 105 cubic metres rather than 70 cubic metres.

So, amongst other alterations to the enforcement notice, he substituted the figure of 105 cubic metres for the figure of 70 cubic metres in Step 3A. Subject to that and certain other amendments, he upheld the notice. Unfortunately, he referred to the notice, erroneously, as a listed building enforcement notice.

The claimant challenged that decision on a number of grounds. It complained, for example, that the notice was referred to as a listed building enforcement notice. I have little doubt that that slip would not have been fatal to the inspector's decision.

But, more importantly, the claimant contended that the inspector had erred in his calculation of the permitted development rights attached to the building. Permission to appeal was granted by Harrison J upon that basis.

As a result of its own further investigations, the claimant realised that the calculations in relation to permitted development rights were more seriously in error.

As a result of those investigations, it has concluded that the enforcement notice was issued on an entirely false premise, that is to say that an extension of 70 cubic metres could have been erected without express permission pursuant to permitted development rights in relation to that property.

On the basis of the information now available to the council it is satisfied that for all practical purposes the permitted development rights were exhausted.

Thus it proceeded in issuing the enforcement notice on an entirely false basis and in so doing it led the inspector to approach the matter on an entirely false basis.

What the council now wishes to do is to withdraw the enforcement notice and start again. It is entitled to do so at any time before the notice takes effect. The question is in these circumstances what, if anything, should be done about the first defendant's decision.

It is submitted on behalf of the first defendant that the appropriate course, rather than remitting the matter back to the Secretary of State, would be for the claimant simply to withdraw the enforcement notice. In those circumstances, it is the first defendant's view that the enforcement notice having been withdrawn, the appeal would simply fall away in any event.

I am not persuaded that it would be right to leave this appeal decision, which it is now acknowledged was taken upon the basis of an entirely false premise, in limbo with the enforcement notice which led to the decision having been withdrawn.

It seems to me that the decision should not be allowed to stand once it is acknowledged that the inspector, through no fault of his own, was misled as to the true factual position.

I would emphasise that this is not an open door to treating any factual error as though it is an error of law, but it is well established that where a decision proceeds upon some fundamental error of fact, that may be regarded as falling within the ambit of an error of law if for no other reason than the decision taker will either have taken account of an irrelevant consideration or failed to take account of a relevant one.

The error in this case falls within that category. It plainly was fundamental to the terms of the enforcement notice and to the terms of the inspector's variations of the enforcement notice.

Thus I am satisfied that the proper course would be for me not merely to make no order in respect of the first defendant's decision but, subject to protecting the first defendant in terms of costs because the error is no fault of the first defendant, to allow the appeal.

In other circumstances, having allowed an appeal I would be able to quash the legally erroneous decision and, knowing that the council proposes to withdraw the enforcement notice, and indeed has given an undertaking to do so, would require no further action to be taken.

The difficulty arises from the terms of the Rules of the Supreme Court, Order 94.13(7), which still governs these proceedings. It is in these terms:

For the reasons just set out, I am of the opinion that the decision was erroneous in point of law. I am not given a discretion; the court "shall" remit the matter to the Secretary of State for re-hearing and determination.

I acknowledge that since in this case the council has publicly stated its intention to withdraw the notice, and indeed has given an undertaking to that effect to the court, remittal will serve no practical purpose.

The court is certainly reluctant to make orders that serve no purpose or are academic, but I feel constrained by the terms of RSC 94.13(7).

What I propose to do therefore, upon the basis that the council has undertaken to withdraw the enforcement notice within 14 days, is to state clearly in this judgment that I do not expect the first defendant to take any steps by way of redetermining the appeal for a period of at least 14 days.

That should ensure that the first defendant is put to no unnecessary administrative burden because within the period of 14 days the enforcement notice will have been withdrawn and the first defendant's view in those circumstances is that any appeal would fall away with the withdrawn enforcement notice.

I think the sensible course, given the somewhat untidy nature of this solution to the problem, is to incorporate in the court's order liberty to the parties to apply in case anything goes wrong. I express the hope that it does not.

So the order of the court is that the appeal is allowed. The matter is remitted to the Secretary of State with this opinion for re-hearing and determination by him. But upon the undertaking of the claimant to withdraw the enforcement notice within a period of 14 days, the first defendant is not to take any action by way of redetermination for at least 14 days.

The parties are agreed that the claimants should pay the first defendant's costs. Those costs are to be summarily assessed in the agreed sum of £3,158 and the parties have liberty to apply.

Mr Auburn, is there anything that I should have incorporated in that from the Secretary of State's point of view that is missing?

MR AUBURN: No, my Lord.

MR JUSTICE SULLIVAN: I think that deals with the matter as least unsatisfactorily as possible.

MR OWEN: Is there a limit in point of time in relation to the liberty to apply, my Lord?

MR JUSTICE SULLIVAN: Liberty to apply, what, shall we give 21 days or 28 days?

MR OWEN: 28 days, perhaps.

MR JUSTICE SULLIVAN: 28 days. That will give the parties time, a fortnight, if things have all fallen down -- hopefully they will not. Would that be sensible, Mr Auburn?

We certainly do not want people turning up six months hence, saying: what is going on?

MR OWEN: That was my concern.

MR AUBURN: Yes, my Lord, we would agree to that.

MR JUSTICE SULLIVAN: It is important because suppose the council fall down and, for whatever reason, they do not withdraw, then the Secretary of State might want to come back to court and say: what am I meant to do, what is going on?

But I think it is sensible to have some sort of limit because, with respect, we do not want the second defendants, who hitherto have played absolutely no part, turning up, as I say, in six months' time, saying: well, I have liberty to apply.

So liberty to apply in 28 days.

MR OWEN: I am grateful. Thank you, my Lord.

MR JUSTICE SULLIVAN: Thank you both for helping me to sort that one out. I have never come across that before.

MR OWEN: It is somewhat unusual. I am sorry it took us so long to find out what the truth was.