Singh, R (on the application of) v First Secretary of State

In an enforcement appeal, the appellant bears the burden of establishing the statutory ground relied upon, but the Inspector must determine the real issue raised by the evidence. Where an enforcement notice prohibits all retail sales, the Inspector must consider whether the notice goes beyond what is necessary, including whether ancillary retail sales remain lawful. The notice and decision must leave the landowner able to understand the permitted scope of use. A failure to investigate the nature and extent of the former and present uses, or to consider whether the required prohibition is excessive, may result in an unfair determination and an error of law.

The claimant operated a furniture manufacturing, repair and retail business from premises in Birmingham. The local authority issued an enforcement notice alleging an unauthorised material change of use to a mixed manufacturing and retail use, requiring all retail sales to cease.

An Inspector dismissed the claimant’s appeal under section 174(2)(b) of the Town and Country Planning Act 1990. The claimant challenged that decision, contending that retail sales had formed part of the previous use and that the Inspector had failed to determine the material change issue fairly. The central questions were the nature and extent of the former and present uses, and whether the enforcement notice prohibited more than was necessary.

1. Appeal allowed. The Inspector’s decision was quashed. The appeal against the enforcement notice was remitted for fresh consideration on the whole of the material evidence and all material issues.
2. Under section 174(2)(b) of the Town and Country Planning Act 1990, the relevant question was whether the alleged material change of use had occurred. The evidence showed that the former occupier had manufactured goods on the premises and sold them there by wholesale and retail. The claimant’s case was that he likewise manufactured or repaired goods and sold them from the premises.
3. Whether the present use was materially different from the former use was a matter of fact and degree. The Inspector had treated the present use as mixed manufacturing and retail use, but had not sufficiently investigated the nature and extent of the former retail sales, their relationship with manufacturing, or the precise comparison between the former and present uses.
4. The burden rested on the appellant to establish the ground relied on in an enforcement appeal. The court applied the principle in Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 404. That burden did not relieve the Inspector of the obligation to determine the real issue fairly where the evidence and the form of the notice indicated that the appellant had misunderstood the issue.
5. Although the claimant had not expressly appealed on section 174(2)(f), the Inspector was required to consider whether the steps required by the notice exceeded what was necessary. The notice prohibited all retail sales, although ancillary retail sales would remain lawful. The Inspector should have considered whether the notice required qualification so that the claimant could understand the permitted scope of retail activity.
6. The court did not decide that there had been no breach of planning control. Fresh consideration might establish that the retail use was materially different from the former use. The enforcement notice remained suspended pending the fresh determination. Costs were to be subject to detailed assessment.

• High Court (Administrative Court): allowed the claimant’s appeal and quashed the Inspector’s decision.
• Planning Inspector: dismissed the appeal against the enforcement notice under section 174(2)(b) of the Town and Country Planning Act 1990.