Leeds City Council, R (on the application of) v Secretary of State for Home Department

A fundamental error of fact may amount to an error of law where it causes the decision-maker to take account of an irrelevant consideration or fail to take account of a relevant one. The error must be fundamental; an ordinary factual mistake does not automatically become an error of law. Where an appeal decision is legally erroneous, RSC Order 94.13(7) requires the court to remit the matter to the Secretary of State for rehearing and determination. The court has no discretion to dispense with remittal merely because the underlying enforcement notice is to be withdrawn and the rehearing will serve no practical purpose.

Leeds City Council appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision on an enforcement notice appeal concerning unauthorised extensions and dormer windows at a Leeds property.

The enforcement notice was framed on the basis that 70 cubic metres of permitted development rights remained. The inspector recalculated the figure as 105 cubic metres and varied the notice. The council later discovered that the permitted development rights had effectively been exhausted, so the notice and the inspector’s decision had proceeded on a fundamentally false factual premise. The council undertook to withdraw the notice and sought to start again. The central issue was what should be done with the inspector’s decision in those circumstances.

1. Appeal allowed. The inspector’s decision had proceeded on an entirely false premise about the permitted development rights attaching to the property. That error was fundamental to both the enforcement notice and the inspector’s variations of it.

2. A factual error may fall within the ambit of an error of law where the decision-maker has thereby taken account of an irrelevant consideration or failed to take account of a relevant one. This principle does not make every factual error an error of law. The error here satisfied the required threshold because it materially affected the basis and terms of the decision.

3. Under RSC Order 94.13(7), where the court considers that the decision appealed against was erroneous in point of law, it must remit the matter to the Secretary of State for rehearing and determination. The wording imposed a mandatory obligation and gave the court no discretion to quash the decision without remittal, even though remittal would serve no practical purpose after withdrawal of the enforcement notice.

4. The matter was therefore remitted. In light of the council’s undertaking to withdraw the enforcement notice within 14 days, the Secretary of State was not to take steps towards redetermination for at least that period. The parties had liberty to apply within 28 days. The council was ordered to pay the Secretary of State’s costs, summarily assessed at £3,158.

The judgment does not state any earlier judicial decision. It concerns an appeal under section 289 of the Town and Country Planning Act 1990 from an inspector’s enforcement notice appeal decision dated 27 May 2004.