Exmouth Marina Ltd., R (on the application of) v First Secretary of State

On a remitted enforcement appeal, the decision-maker must reconsider the matter subject to the High Court’s ruling and statutory constraints. An earlier decision on the construction of a planning permission does not create an issue estoppel on the separate planning judgment of whether the permission is likely to be implemented.

A fall-back position may be material even where its prospect is more theoretical than real. Its likelihood and the harm it would cause are matters for the decision-maker, subject to the threshold of Wednesbury reasonableness.

On an appeal under section 174(2)(a), permission may be granted for any part of the matters constituting the breach. Under-enforcement under section 173(11) does not itself create a deemed application on which conditions may be imposed.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against a second Inspector’s dismissal of an enforcement notice appeal concerning unauthorised boat-storage racks at Exmouth Marina.

A first Inspector had rejected a modified scheme. On an earlier statutory appeal, Sullivan J held that the original planning permission did not prohibit storage of boats on top of the permitted structure and remitted the matter for reconsideration.

The second Inspector treated the original permission as a fall-back position but gave it little weight, finding its implementation more theoretical than real. The claimant challenged that approach, alleged issue estoppel, and raised questions concerning the scope of permission under section 174(2)(a) and the effect of under-enforcement under section 174(2)(f).

1. Issue estoppel. The earlier High Court judgment decided only the proper construction of the planning permission. It did not decide the factual likelihood of implementation or the planning weight to be given to that possibility. The second Inspector was therefore entitled, and subject to his statutory duty, to reconsider the matter afresh after remission. The court followed the approach in Newbury District Council v Secretary of State for the Environment [1988] JPL 185.
2. Fall-back position. A fall-back use is a material consideration where it is more than a purely theoretical entitlement, but the decision-maker must assess its probability. The degree of probability and the seriousness of the possible harm are matters for the decision-maker’s planning judgment. The Inspector was entitled to consider the unsuitable design, operational difficulties, possible revocation, and possible planning-control difficulties. He was also entitled to give the fall-back little weight.
3. Modified scheme. The Inspector’s reference back to his earlier analysis sufficiently showed that he had compared the modified scheme with the permitted scheme. His reasons were summary on that comparison, but adequate for an informed reader and not unlawful.
4. Section 174(2)(a). Under section 177(1), the Secretary of State may grant permission for the whole or any part of the matters stated in the enforcement notice. The fact that the permitted part may constitute a substantially different structure does not remove that power. Conditions may be imposed under section 177(3) and section 70(1)(a), but they cannot be so stringent as to be unreasonable and invalid.
5. Section 174(2)(f). Section 173(11) regularises development omitted from an enforcement notice once the notice’s requirements are complied with. Its reference to section 73A imports the provision concerning the operative date of permission; it does not deem an application to have been made or itself provide a power to impose conditions. The Inspector was correct on this point, and his earlier error concerning section 174(2)(a) did not affect the result.

The appeal was dismissed. The claimant was ordered to pay the defendant’s costs.

The claimant appealed to the High Court under section 289 of the Town and Country Planning Act 1990 against the second Inspector’s decision. The appeal was dismissed, with costs.