Hill v Secretary of State for Transport, Local Government & Anor

On an appeal under section 289 of the Town and Country Planning Act 1990, the appellant bears the general onus of establishing a ground of appeal under section 174. That does not permit a planning authority to succeed by bare assertion. The inspector must assess all the evidence, including which party has the better ability to obtain it. If the authority produces no evidence on a matter it would be expected to know, that may assist the appellant in discharging the onus. Where the evidence remains balanced, the inspector may decide the issue by reference to the onus of proof. A C-road designation by a highway authority is not itself proof that the road is a classified road for the purposes of the GPDO, although it may support that inference.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of his appeal against an enforcement notice issued by Mid-Sussex District Council. The notice alleged engineering operations involving the formation of an access to a classified road without planning permission. The claimant relied principally on grounds (b) and (c) under section 174, arguing that no relevant entrance had been formed and that the development was permitted by Schedule 2, Part 5, Class B of the GPDO 1995 because it was required by his caravan-site licence.

The central issue was whether Valebridge Road was a classified road within Article 3(6) of the GPDO. A further issue concerned the burden of proof in a ground (c) appeal and its compatibility with Article 6 of the Convention.

1. Appeal dismissed. The inspector’s finding that an entrance had been formed was not challenged. His reference to the council’s own description of Valebridge Road as a classified C road had no legal effect for the purposes of the GPDO, but the error was immaterial because classification was principally relevant to ground (c).
2. The statutory scheme meant that roads classified in Class I, II or III before the Local Government Act 1966, or classified thereafter by ministerial declaration under section 27(2), could continue to be classified roads for the purposes of the GPDO through section 12 of the Highways Act 1980. A local authority’s administrative classification was not conclusive. An A-road or B-road designation could support an inference of classification, while a C-road designation was only indicative.
3. The general principle in Nelsovil Ltd v Minister of Housing and Local Government [1962] 1 WLR 404 applied: the appellant had to establish the ground (c) contention that there was no breach of planning control. That principle did not mean that an authority could succeed on assertion alone. The inspector had to consider the evidence as a whole and the parties’ respective ability to obtain it. A failure by an authority to produce evidence which it would be expected to possess could support an inference against it. If the evidence remained genuinely balanced, the onus of proof could determine the result.
4. The evidence, including historical classification records and the treatment of the road as Class III or Class 3 by the county councils, established a strong prima facie case that Valebridge Road was classified. The inspector’s description of that evidence as showing only a possibility was unreasonable, but his ultimate conclusion was justified. In any event, relief would have been refused because the same conclusion was inevitable.
5. The reverse-onus argument under Article 6 was untenable in light of Bryan v United Kingdom [1995] 21 EHRR 342 and Salabiaku v France [1991] 13 EHRR 379. The enforcement appeal was not criminal proceedings and the system was compatible with Article 6.

The appeal was dismissed with costs of £7,747.50. The claimant was given 21 days to apply in writing for permission to appeal.

This was a first-instance decision of the High Court (Administrative Court) determining a statutory appeal against an inspector’s decision. The judgment does not state any subsequent appellate decision.