O'Reilly, R (on the application of) v First Secretary of State & Anor

On an appeal under section 289 of the Town and Country Planning Act 1990, an Inspector’s assessment of evidence will not be disturbed for perversity merely because another inference was open. The challenger must show that the conclusion was not reasonably open on the evidence as a whole. An appellant receives a fair hearing where the evidence relied upon was introduced as part of its own case and the appellant had a proper opportunity to address it. An Inspector need not disclose provisional views or invite further evidence before analysing evidence already submitted, although fairness remains fact-sensitive.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision upholding an enforcement notice concerning the alleged unauthorised use of two garages for car repairs. The appeal was confined to the rejection of the ground (d) claim that a continuous ten-year use had become immune from enforcement.

The claimant challenged the Inspector’s treatment of invoice evidence on grounds of perversity and procedural unfairness. The central questions were whether the Inspector’s conclusion was reasonably open on the evidence and whether fairness required him to raise his concerns about the invoices before issuing his decision.

1. Appeal dismissed. The claimant failed to establish perversity. It was insufficient to show that a different inference could have been drawn. The claimant had to show that the Inspector’s conclusion was the only conclusion reasonably open on the totality of the evidence.
2. The Inspector had considered all 14 invoices and was entitled to treat only two as specifically evidencing repairs carried out by Scanlon Autos. The significance of the documents was a matter of judgment for the Inspector in the light of all the evidence, including contradictory evidence from local witnesses.
3. There was no procedural unfairness. The invoices had been introduced by the claimant as evidence supporting the ground (d) appeal. The claimant was professionally represented and had the opportunity to explain the documents and submit whatever evidence he considered appropriate. The Inspector was not required to canvass provisional views or invite further documents before analysing the evidence.
4. The fairness principle illustrated by Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 is fact-sensitive. The present case differed because the concerns related to evidence forming part of the claimant’s own case, rather than an entirely new matter identified on inspection and relied upon without a fair opportunity to respond.
5. The Inspector’s conclusion that continuous car-repair use between February 1994 and February 2004 had not been proved on the balance of probability was lawful. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £3,000.

The judgment describes an appeal under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision dismissing the claimant’s appeal against an enforcement notice. The Inspector upheld the notice with corrections and variations. The Administrative Court dismissed the statutory appeal and ordered costs.