Wedlake, R (on the application of) v First Secretary of State & Anor

In an enforcement notice appeal, an inspector must make an express and clear finding where an appellant claims an established lawful use immune from enforcement action. The issue should not be left to implication, particularly where breach of the notice may lead to criminal proceedings. An inspector may consider the relationship between land within the appeal site and satellite sites when characterising the use of the appeal site. However, a vehicle reception facility serving cars parked elsewhere may be materially different from use of the site as a car park. An amendment to an enforcement notice under the Town and Country Planning Act 1990 is impermissible where it materially changes the case to be met and causes injustice.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision dated 20 October 2004 concerning an enforcement notice issued by North Somerset Council. The notice alleged an unauthorised change from domestic curtilage to use as a car park for airport passengers and other paying customers.

The claimant relied on the ten-year immunity provisions in sections 174(2)(d) and 171B(3), asserting that commercial parking had existed since about 1989. The Inspector found a major change in the nature of the operation around the turn of the century, involving satellite sites and a vehicle reception facility, but did not clearly determine whether an earlier lawful parking use had been established. She also amended the enforcement notice after the inquiry to include the reception facility. The central issues were whether the Inspector had adequately determined the established-use claim and whether the amendment caused injustice.

1. Established use. Where an established use right is raised in an enforcement notice appeal, the Inspector must make an express and clear finding on the issue. A conclusion left to implication is unsatisfactory because the appellant must know whether continued use may expose them to criminal proceedings for breach of the notice. The Inspector had not clearly determined whether the claimant had established ten years’ commercial parking use.
2. Characterisation of use. The relationship between the appeal site and satellite sites was relevant to characterising the use of the appeal site, even though the satellite sites were not part of the planning unit. The Inspector was entitled to take that relationship into account. The previous reception arrangements had been considered, and the conclusion that they were not comparable with the organised operation then carried on was open to her.
3. Amendment of notice. Under section 176(1)(b) of the Town and Country Planning Act 1990, an enforcement notice may be amended only where the variation will not cause injustice. Use of the site as a car park was materially different from use as a reception facility for cars parked elsewhere. The amendment therefore substantially changed the breach alleged and the case the claimant had to meet. The Inspector was wrong to treat it as non-essential and merely clarificatory. The claimant was thereby prejudiced, including because the amendment contributed to the failure to address the ten-year parking-use issue.
4. Disposition. The appeal succeeded on the failure to make a clear finding and on the unfair amendment. The decision was remitted in relation to notice A so that the ten-year user issue and the amendment of the enforcement notice could be reconsidered. Time for service of an Appellant’s Notice was extended to 14 days after availability of the transcript. Costs were ordered to be subject to detailed assessment if not agreed.

• High Court (Administrative Court): The claimant appealed under section 289 of the Town and Country Planning Act 1990 against the First Secretary of State’s Inspector’s decision dated 20 October 2004. The appeal succeeded in part, and the matter was remitted in relation to notice A.