| TOWN PLANNING — Enforcement notice — Validity — Unauthorised use of premises - material error of fact — Town and Country Planning Act 1990, s 174(2) (as substituted by Planning and Compensation Act 1991, s 6(1)), s 288 (as amended by Tribunals and Inquiries Act 1992, s 18(1), Sch 3) and s 289 (as amended by Planning and Compensation Act 1991, s 6) — Planning and Compulsory Purchase Act 2004, s 38
London Borough of Haringey v Secretary of State for Communities and Local Government and another [2008] EWHC (QB); [2008] WLR (D) 145
Sullivan J: 8 May 2008
In holding that there were material considerations that warranted a departure from the claimant’s statutory development plan under s 38 of the Planning and Compulsory Purchase Act 2004, the inspector appointed by the first defendant had made a material error of fact amounting to an error in law when he granted planning permission under s 174(2)(a) of the Town and Country Planning Act 1990 to the second defendant for the unauthorised use for education, training and worship of a unit in premises within an area designated by the claimant in its development plan as a “defined employment area industrial location”.
Sullivan J so held in quashing the grant of permission under s 288 of the 1990 Act and allowing the claimant’s appeal under s 289 against the quashing of the enforcement notice served by it on the second defendant. The inspector had upheld the second defendant’s appeal against the enforcement notice on ground (a) in s 174(2) of the Act, namely that planning permission ought to be granted for the unauthorised use of unit 1. The claimant contended that the inspector had made a material error of fact and a finding unsupported by probative evidence (namely that the educational use of two other units, 1a and 2, was not unauthorised), and the approach adopted by the inspector was unfair and in breach of natural justice in that this was a new point which the inspector had not put to the claimant.
SULLIVAN J said that the inspector’s claim that “nothing had been put before [him] to indicate that the educational use of units 1a and 2 was unauthorised” was erroneous. There was no evidence whatsoever before the inspector regarding the lawfulness of the use of units 1a and 2. The claim form and witness statement affirmed the true position. No planning permission for educational use had been given and there was no evidence that such use had begun more than 10 years before the enforcement notice was served. Further, the terms of a previous inspector’s decision, which upheld an enforcement notice and refused planning permission for change of use of unit 6 to a place of worship, should have indicated to the inspector that it was unlikely that the use of units 1a and 2 for educational purposes was lawful. The inspector should have raised the matter after the site visit as a matter of elementary fairness and common sense given that the conclusion that the use was not unauthorised was fundamental to the rest of his decision. There was nothing in the second defendant’s appeal notice that related to anything other than the use of unit 1 for the purposes of education and worship. The use of units 1a and 2 was a new point devised by the inspector that should have been put to the claimant. The consequence of the successful application under s 288 of the Act was that the grant of planning permission was quashed. The consequence of the successful s 289 appeal was that the decision quashing the enforcement notice was itself quashed, and the appeal against the enforcement notice was revived and remitted for re-determination.
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