Perrett, R (on the application of) v Secretary of State for Communities & Local Government & Anor

MR JUSTICE MITTING: This judicial review raises a question of some importance in planning procedural law which has not been determined as a matter of decision before. The issue is whether, when an appeal under Section 289 of the Town and Country Planning Act 1990 has been allowed because of an error of law in the decision of the Secretary of State or her inspector in determining an appeal against an enforcement notice, and the court remits the matter to the Secretary of State for re-hearing and determination, the Secretary of State, or an inspector appointed by her, must re-hear the whole matter, or may he or she limit the re-hearing only to those matters which relate to or gave rise to the legal error?

To answer that question it is necessary to set out the facts and something of the procedural history of this case in a little detail. The claimant is the owner of Court Farm, Buckland, Newton near to Dorchester in Dorset. On that farm are a number of outbuildings originally used as farm buildings for the purpose of the farming activity carried on there, which, in the mid-1990s, gradually became converted for use for non-agricultural purposes. Although there were some alterations to the buildings, the principal change was in the use of the buildings. Enforcement notices were served requiring the then current uses of the buildings to cease. The precise date of the notices is not known to me, but they appear to have been served either in or shortly before 2005.

The claimant appealed against the enforcement notices. He did so on a number of grounds, to which I will refer in a moment. Two of the appeals were allowed; nine were dismissed. The grounds on which he appealed in each case included several of those set out in section 174(2) of the 1990 Act. It is only a marginal oversimplification to say, however, that two issues principally arose in each appeal. The two issues arose under section 174(2)(a) and (d), which provide:

Sensibly, and in accordance with universal practice, the inspector considered Ground (d) first. Because there had been a change of use, rather than building, engineering, mining or other operations, the relevant time limit was that set out in section 171B(3): 10 years beginning with the date of the breach. Accordingly, in respect of the eleven appeal sites, the inspector had to determine whether or not the uses to which they had been put had begun more than 10 years before the date of service of the enforcement notices.

In an oversimplified statement of more complex reasons the inspector determined, in relation to the five appeals with which this case is concerned, that there had been two or more non-agricultural uses of the appeal sites during the 10 years before service of the enforcement notice. Accordingly, he determined that enforcement action could be taken because, although each site had been the subject of non-agricultural use for more than 10 years, it had not been the subject of the same non-agricultural use, in breach of planning control.

The claimant criticises his findings of fact and wishes to re-open those issues, but at no stage has he asserted formally that the inspector made any error of law in relation to them.

As to Ground (a), the inspector stated his conclusion in blunt language. Having described the site, which was a group of farm buildings in an area of outstanding natural beauty, and having considered local policies, he determined:

He also decided that the extra traffic generated by the unlawful uses was unacceptable and likely to interfere with the free and safe flow of traffic on roads in the area and that the uses of the sites had an unacceptable effect on nearby occupiers.

The inspector reached those conclusions about the five sites which are the subject of this judicial review compendiously. He did not, as case law is said to require, consider each site individually, and determine in relation to each site whether, by reference to the planning merits referable to that site, he should allow or refuse the appeal on Ground (a).

The claimant appealed to the High Court against that aspect of the inspector's decision under section 289. The Secretary of State conceded the appeal on the single ground that the inspector dealt with Ground (a) compendiously rather than separately. By a consent order dated 11th May 2007, Langstaff J remitted the appeals in relation to the five sites for re-determination on the grounds set out in the schedule to the order. Those grounds were that the inspector dealt with the appeals compendiously rather than separately.

Section 289(5)(a) provides:

Section 288, which deals with challenges to other planning decisions, principally, but not only, the grant or refusal of planning permission, contains no such provision. Under Section 288, the power of the court is to quash. Under section 289, it may not quash, but may only remit for re-hearing and determination. The principal reason for the difference is the need, under section 289, to avoid striking down the enforcement notices which are the subject of the statutory appeal, because, as section 4A makes clear, those enforcement notices remain alive and, with the permission of the High Court or the Court of Appeal, may be enforced by criminal sanction or injunction, even though they are the subject of a challenge under Section 289.

Appeals under Section 289 were formerly dealt with by RSC Order 94, Rule 13, but are now dealt with by a combination of CPR Part 52.20 and 52 PD, paragraph 22.6C(14), which provides:

Paragraph 21 of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 SI 2002/2685 provides:

Rule 9, which does not contain a subrule (8), provides for the time at which notices are to be served, the place at which an inquiry is to be held and for adjournment of the inquiry. It says nothing about other procedural requirements and, in particular, says nothing about the procedural requirements set out in paragraphs 6, 7, 11, 15, 16 and 17 of the procedure rules, which deal compendiously with the service of evidence, representation at the inquiry and the ability to examine and cross-examine witnesses giving oral evidence.

Once the consent order had been made, matters took a somewhat wayward procedural course. Without setting it out in detail, the Secretary of State's officials decided initially that the same inspector would deal with the appeals "by the hearing method". That prompted representations from the claimants and the local planning authority: the claimants wished to have a full re-hearing with all issues open and the ability to call evidence about all of them; the local planning authority wished to confine the re-hearing to Ground (a) matters only. Both sides threatened, and the claimant actually instituted, judicial review proceedings.

By a letter dated 19th September 2007, the Secretary of State decided that the appeals would be heard by an inspector at an inquiry, rather than redetermined by the hearing method. By a letter dated 13th November 2007, the Planning Inspectorate proposed to limit the scope of the inquiry to Ground (a). By the final decision letter of 15th January 2008, the Planning Inspectorate, this time by its enforcement section manager, stated the following:

The enforcement section manager went on to propose a pre-inquiry meeting and accepted the claimant's submission that it would be sensible to appoint a new inspector to preside over it. A pre-inquiry meeting was held. The inspector, in his opening remarks, stated that he had a duty to consider the matters de novo, which "also involves taking into account any circumstances which have changed since the previous inquiry".

After cosidering the parties' representions, the inspector decided that there was no new evidence which could justify re-opening the appeal under Ground (d), so he would not admit any, but he would hold a full re-hearing with no such restrictions on Ground (a).

The claimants were dissatisfied with that decision. They wished to re-argue both Ground (a) and Ground (d), together with other subsidiary grounds. Accordingly, they challenged the inspector's decision to refuse to admit new material under Ground (d) by these judicial review proceedings. I have given permission for them to argue all of their grounds, even though, at the stage at which I began to consider this review, they were limited to one only by the decision of the Deputy Judge who gave them permission on a single ground.

The underlying question is whether or not the Secretary of State is entitled, under the statutory scheme, to limit the re-hearing and determination following a successful appeal only to the ground which gave rise to the successful appeal. As I stated at the start of this judgment, this has never fallen for determination by the court in the stark way in which it does in this claim.

In Newbury District Council v Secretary of State for the Environment and George Rawlings [1988] JPL 185, Kennedy J heard an appeal under the predecessor to section 289, section 246 of the 1971 Act. In that case there were two issues. First, should the appellant be granted planning permission for the use of land for a mixed use of residential and scrap metal business? Secondly, should he be permitted to station caravans on the land? The planning inspector, on the statutory appeal, granted planning permission for the mixed use, but amended the enforcement notice in relation to the stationing of caravans on the land in a way that was unclear. The appellant wished to retain the advantage of his planning permission, but to challenge the upheld enforcement notice in relation to the stationing of caravans. An error of law was found.

Giving guidance about the procedure to be followed on the remitted hearing, Kennedy J is reported to have said:

Counsel for I think the appellant in that case was Mr Graham Eyre QC (as he then was). He had the opportunity to revisit the issue as a Deputy Judge, not under Section 289 or its predecessor, but under the predecessor to Section 288.

The facts that gave rise to the appeal in Kingswood District Council v Secretary of State for the Environment [1988] JPL 248, 15th July 1987, were straightforward. Planning permission was granted on appeal and subject to conditions for the change of use of a single building from 11 flats to a single dwelling and the conversion of an existing coach house into a single dwelling, including a 12-car garage.

The main issue in the case, on the statutory appeal, related to green belt policy; but without canvassing the condition challenged in the section 245 appeal with the parties at the appeal hearing, the inspector imposed a condition of his own in relation to the use of the garages. It was accepted by the Secretary of State that that determination was procedurally improper and that, accordingly, the appeal had to be allowed. It followed, subject only to arguments which were not raised about a lack of materiality, that the court had to quash the inspector's decision. It did so. So far, so uncontroversial, but as Mr Eyre observed, the case raised by a side wind two important and interesting matters, the first of which was what would happen on the re-hearing of the statutory appeal.

Mr Eyre reviewed the authorities, and in particular Price Brothers (Rode Heath) Limited v Department of the Environment [1979] 38 P&CR 579, a decision of Forbes J in which he noted and approved the concession made by Mr Schiemann that once a decision is quashed "it must be treated as not having been made. Therefore, the Secretary of State has, as it were, a blank sheet, and he has to make another decision". He expressed the conclusion that the Secretary of State had to consider the matter de novo -- as if he had a blank sheet. In the course of his review of the cases, he expressed the view that when Kennedy J indicated that the Secretary of State could review all matters, he was in fact required to do so. Mr Eyre equated statutory quashing, under then section 245, with statutory remission under section 246.

Mr Findlay QC relies heavily on those propositions. He submits that once the court has determined that the inspector's decision must be remitted to the Secretary of State for re-hearing and determination, so all issues are open. I do, of course, regard the observations of Sir Graham Eyre with great respect. However, he did not have to deal with facts such as those which give rise to this case.

In this case the inspector made unchallenged determinations about past events, and so rejected the claimant's appeal under Ground (d). He did so after an inquiry lasting many days, having heard much oral evidence, and considered much written material about disputed facts. What advantage, I ask rhetorically, is there in permitting unchallenged findings to be re-opened simply because an error of law has been made in relation to a discrete aspect of the inspector's task -- the determination of whether or not planning permission should be granted? Absent statutory compulsion or binding case law, it seems to me that the answer to that question can only be that it is not in the public interest and there is no legitimate advantage to be had in re-opening issues of past fact lawfully determined.

It has been observed before that an appeal against an enforcement notice, where both Grounds (a) and (d) are invoked, gives rise to two separate planning decisions: one, whether or not something has happened, or has not happened, and the other, whether something should happen in future. The determination of the first question will only have an impact on the second question insofar as it makes it unnecessary to answer it. If it is determined that there has been 10 years' continuous use under section 171B(3), then there is no need to grant planning permission for a change of use. If it has been determined that there has not been 10 years' continuous use, then the question whether or not planning permission should be granted is live, but is uninfluenced by findings of fact as to what has happened in the past.

Mr Findlay submits that the scheme, now part statutory and part non-statutory, requires that a re-hearing and determination encompasses all matters and starts with a blank sheet. I do not accept that submission. Nothing in section 289(5)(a) or CPR PD 52, paragraph 22.6C(14) requires that answer to be given. All that is required is that the matter should be remitted to the Secretary of State for re-hearing and determination. Neither the statute nor the practice direction define re-hearing as a re-hearing of the whole matter. Indeed, a natural construction of the language of the practice direction, that the matter will be remitted to the Secretary of State for re-hearing in accordance with the opinion of the court, suggests otherwise: that the re-hearing can be limited in appropriate cases to a re-hearing of those matters that are necessary to comply with the opinion of the court. Likewise, determination does not imply, as a matter of language, that a full re-hearing of all issues occurs.

Mr Findlay submits that, while it may be superficially attractive, and certainly might be thought to be so on the facts of this case, that the interpretation which I put on these words is right. It may well cause problems in other cases. He submits that if appellants cannot appeal successfully on a cast-iron ground on one of the grounds under section 174(2), so grounds of appeal may become more prolix and may include not only cast-iron or strongly-arguable grounds, but also grounds that are weaker, or even not properly arguable, so as to preserve the claim of an appellant to re-open all of the grounds on a remitted hearing.

I do not accept that proposition. No appeal under Section 289 may lie without the leave of the court. Accordingly, if such grounds were to be included, they could be winnowed out at an early stage by the court. The theoretical disadvantage identified by Mr Findlay is, in my view, clearly and greatly outweighed by the likely saving in time and costs in cases which have given rise to a number of grounds of appeal, some of which have been securely determined. This case is an example. If this appeal has to be re-heard on all grounds, with free rein to call all evidence thought by the parties to be relevant to all grounds, it, like the original inquiry, may well take very many days and put a significant number of people to considerable inconvenience. By contrast, if the appeal is limited only to that aspect of the case which gave rise to the legal error, it can be dealt with with much less expenditure of time and money.

Mr Findlay submits that the same result can be achieved by the vigorous use by the inspector of his case management powers, including his power to award costs in the event that a part of an appeal is pursued unreasonably. That is, of course, right, if the inspector is required to open his mind to challenges to aspects of the case which were not the subject of any legal error; but it is an artificial exercise to require an inspector to re-hear an appeal de novo, while in practice limiting the re-hearing by the exercise of those case management powers, so as to discourage appellants from re-opening already determined questions. It seems to me to be far better to approach the matter as one of principle and to reach a clear decision about what should occur.

I have no doubt that the court is entitled, on remitting the matter for re-hearing and determination, in accordance with its opinion, to limit re-hearing and determination only to those questions which gave rise to the appeal. In the case of an appeal under Ground (a), the court would not exclude consideration of any changes in policy that may have occurred since the original determination, because of the need, recognised in the case law, for planning decisions, whether original or on appeal, to be taken in accordance with policy considerations then applying.

Mr Beard for the Secretary of State does not suggest, and nor do I, that when an error of law has been made in relation to an appeal under Ground (a), that the matter should not be remitted for re-hearing and determination de novo with a blank sheet, but the fact that that aspect of an appeal is remitted for re-hearing and determination de novo does not require the remaining grounds, with the probable exception of Ground (g), to be re-opened. Accordingly, and as a matter of principle, I conclude that the Secretary of State was entitled to limit the re-hearing and determination only to Ground (a).

Mr Findlay makes a further submission based only on the facts of this case. He submits that the letter of 15th January 2008, against the background of somewhat uncertain decision making up to that time, demonstrates that the Secretary of State directed that a further inquiry be held at which the inspector was to consider all issues de novo. In that event, he submits, it was not open to the inspector to limit the evidence that he would admit on Ground (d).

Mr Beard, who has made commendably realistic submissions in relation to that issue, accepts that if that is what in fact occurred, then the inspector was not entitled to take the course that he did. But, he submits, the letter of 15th January 2008 does not bear that meaning. He accepts, and I observe, that the letter could have been more clearly worded, but even though it could have been, it is clear from the passages in it that I have recited that the author intended that the re-hearing and determination should occur only in relation to Ground (a).

In future it would no doubt be better for the Secretary of State to make it clear that the re-hearing and determination is limited to Ground (a) and directing the inspector only to admit evidence and material relevant to that ground, but that is, when one views the letter in the round, what occurred here. In deciding, as he did, not to accept further evidence about Ground (d), the inspector did not commit any relevant error of law or approach. The end result of the procedure, accordingly, has turned out right.

For those reasons, I dismiss this claim for judicial review of the decisions of the Secretary of State and the inspector.

MR BEARD: My Lord, in those circumstances I do apply for costs. Given the difficulties associated with my learned friend not being attended, there is only one, as far as I am aware, costs schedule in the courtroom. I do not know if your Lordship has a copy of the costs schedule submitted by those instructing me last week, which I have mislaid.

MR JUSTICE MITTING: No, I do not. I only have the schedule submitted by the claimant.

MR BEARD: My Lord, I have a schedule here totalling £6,718. I hand it to my learned friend because I know he has only seen it very briefly.

MR FINDLAY: My Lord, can I reserve my submissions on the principle of costs for the moment, but insofar as quantum is concerned, certainly, to my initial view, there is nothing there that excites my attention, but perhaps, because my instructing solicitor is caught on a train between Salisbury and West Thornton, I could ask the court's indulgence to have 14 days to make written submissions on costs if we do not wish to pay the sum that is being claimed by the Secretary of State.

MR JUSTICE MITTING: Agreed?

MR BEARD: In the circumstances, I do not resist that. I do invite your Lordship make an order that costs should be paid. There is no sound reason why costs should not be paid. If my learned friend is asking to make submissions in respect of the principle of costs, having regard to the circumstances of the day, I do not resist that either, but if my learned friend is only making submissions as to quantum, I invite your Lordship to make an order for costs, as sought, subject to submissions being made in writing.

MR FINDLAY: My Lord, I can make my submissions on principle now? It is only as to quantum that I wanted to reserve my position.

MR JUSTICE MITTING: Yes, so I thought.

MR FINDLAY: In terms of principle, the Secretary of State's position has changed somewhat during the course of this case, and indeed from that set out in the skeleton argument. Your Lordship has found against me on the point of principle, but in respect of the letter of 15th January, your Lordship has heard some criticisms of that letter and, my Lord, that letter in itself did not, but in its terms, restrict matters to Ground (a). In the circumstances, I would ask your Lordship to reflect the convoluted history of this matter and the way that the matter has been approached by the Secretary of State on appeal, in either reducing or eliminating the costs award against the appellant. They have had, in terms of the approach from the Planning Inspectorate, which has blown hot and cold -- in my submission the appellant should not be penalised in costs either fully, or to the full -- if at all, in respect of this appeal.

MR JUSTICE MITTING: Yes. Mr Beard?

MR BEARD: My Lord, I accept, as I already have, that this case has an unhappy history, but the claimant took the risk of applying for judicial review. He was not daunted by the fact that permission was only granted on one of the grounds. I accept that I have clarified the Secretary of State's case on my feet today -- there is no doubt about that -- but there can also be no doubt that the Secretary of State has always maintained, either through her Planning Inspectorate or through her acknowledgment of service or through me today, that the Secretary of State has the discretion to limit the ambit of the re-hearing and determination of appeal. So in those circumstances, my Lord, if your Lordship is minded to reflect the unhappy history in any costs award, it should not be of any significance to the overall result.

MR FINDLAY: My Lord, I do not accept that the Secretary of State has spoken with one clear and unbroken voice throughout and, in my submission, it is a suitable case for your Lordship to certainly reduce the costs by a proportion.

MR JUSTICE MITTING: In my view the Secretary of State has not spoken with a clear voice throughout. The arguments originally advanced by her have not wholly succeeded. It may be that the muddle that has occurred in the course of the decision taking would not have deterred this judicial review, but it might, and it might have made it a little more straightforward. I think that the right order is that the claimant should pay half the Secretary of State's costs. If it is necessary for me to assess their quantum, I will on written submissions after 14 days.

MR BEARD: My Lord, I am grateful for that.

MR FINDLAY: My Lord, I seek permission to appeal on two grounds. Firstly, it is a matter of considerable importance. Whilst I have obviously noted what your Lordship said about where the balance of convenience lies, this is a matter which will effect many appeals, and particularly in an instance of a case where one has two strong grounds and consent is only forthcoming from the Secretary of State on one of them. So I say it is matter of some importance. I also say that there are reasonable prospects of success.

MR JUSTICE MITTING: As to importance, I doubt it. This is merely a procedural matter. As to prospects of success, I also doubt it. I think that if this matter is to be ventilated further, it should be for the Court of Appeal to decide. I therefore refuse permission.

MR FINDLAY: My Lord, I am grateful. In terms of time to appeal, given your Lordship has given an extempore judgment, and given the absence of my instructing solicitor, would your Lordship extend time to 28 days after the receipt of the approved transcript of your Lordship's judgment.

MR JUSTICE MITTING: You would have 21 days normally.

MR FINDLAY: 21 days.

MR JUSTICE MITTING: Then you can have 21 days from receipt of the approved transcript.

MR FINDLAY: I am obliged.

MR JUSTICE MITTING: Because there is no associate in court, someone will have to draw up an order. The winner?

MR BEARD: I suspect that is us. I shall do that, my Lord.

MR JUSTICE MITTING: Thank you both.