PLANNING – LOCAL GOVERNMENT
BIAS : BUILDINGS : CERTIFICATES OF LAWFUL USE : ENFORCEMENT NOTICES : ESTOPPEL : LEGITIMATE EXPECTATION : PLANNING INQUIRIES : PLANNING INSPECTORS : PLANNING INSPECTOR’S ENTITLEMENT TO UPHOLD NOTICES AND REFUSAL OF CERTIFICATE : EUROPEAN CONVENTION ON HUMAN RIGHTS : s.176(1) TOWN AND COUNTRY PLANNING ACT 1990
A planning inspector had been entitled on the evidence before her to uphold the refusal of a certificate of lawful use and to uphold enforcement notices in respect of former agricultural land that was being used as a scrap yard.
The claimant landowner (F) applied for review of a decision of the first defendant secretary of state’s planning inspector refusing a certificate of lawful use and applied for permission to appeal against her decision upholding enforcement notices. F had applied to the second defendant local authority for a certificate of lawful use in respect of former agricultural land he had acquired. He was using the site as a scrap yard and for storage. The local authority refused the application, and issued enforcement notices requiring the use to cease and the removal of structures that had been erected for the use. F challenged the local authority’s decisions, but the inspector dismissed his appeals against the refusal of the certificate and against the enforcement notices. F argued that (1) he had had a legitimate expectation that the site could lawfully be used as a scrap yard because the local authority had accepted that use; (2) the inspector had not properly addressed issues arising under the European Convention on Human Rights 1950; (3) the inspector had shown bias in pre-judging issues at a pre-inquiry meeting and showing hostility; (4) the inspector had wrongly found that the structures on the site were buildings requiring planning permission; (5) the inspector had exceeded her powers in correcting the enforcement notices; (6) the inspector had erred in finding that there had been insufficient continuous use as a scrap yard to make the use lawful.
HELD: (1) Legitimate expectation and estoppel could not assist F in the planning regime, Rastrum Ltd v Secretary of State for Communities and Local Government (2009) EWCA Civ 1340 and R (on the application of Reprotech (Pebsham) Ltd) v East Sussex CC (2002) UKHL 8, (2003) 1 WLR 348 followed. The inspector had had to decide whether the use was lawful. Legitimate expectation was irrelevant in that determination. Even had there been evidence of the local authority representing informally that the use could be lawful, that would not have prevented the local authority taking enforcement action or refusing a certificate. Only a formal decision made by the local authority in the proper exercise of its statutory powers would represent a conclusive assessment of the status of such use. (2) The inspector’s analysis of human rights issues had been entirely sound. She had correctly concluded that the enforcement action was justifiable as an exercise of powers by a public body charged with maintaining compliance with lawful planning control. It had been reasonable and a proportionate interference with the Convention rights engaged. Nor had the inspector’s decision itself been made incompatibly with F’s Convention rights. She had explicitly balanced the conflicting public and private interests and found the interference proportionate, and her conclusion could not be faulted. (3) There was no substance in any of F’s accusations of bias. There was no evidence that the inspector had determined the outcome of the case by the time of the meeting. At least in part, the purpose of such meetings was for the inspector to share her thinking on procedural matters and any misgivings or queries about the enforcement notice. The inspector had identified matters of concern but had not strayed beyond that into discussion of the appeals’ merits. Neither the inspector’s letters to F nor her treatment of F’s witnesses demonstrated any hostility. (4) F’s argument was a straightforward disagreement with the inspector’s judgment. That did not amount to an arguable error of law. The issue before the inspector had been a matter of fact and degree. She had recognised the need to apply the tests of size, permanence and physical attachment. The only remaining question was whether she had applied those tests within the scope of a reasonable judgment on the evidence before her, and she had done so. (5) There was no error of law in the inspector’s correction of the enforcement notices. Under the Town and Country Planning Act 1990 s.176(1) an inspector had a broad discretion to adapt an enforcement notice to overcome defects in it, provided that no injustice was caused. The inspector had been aware of that test and had not breached that discretion. Further, F had agreed to almost all the inspector’s corrections. The changes made had not widened the scope of the enforcement action and no injustice had arisen. (6) The inspector had not erred in her findings of fact or her conclusions on continuous use.
(1) THOMAS FLATTERY (2) JAPANESE PARTS CENTRE LTD v (1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2) NOTTINGHAMSHIRE COUNTY COUNCIL (2010)