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

On an appeal under Town and Country Planning Act 1990, the High Court may correct an obvious typographical or clerical error in an inspector’s decision where the correction is modest and causes no prejudice. A second inspector may rely on an earlier inspector’s factual findings and assessments except to the extent that they conflict with the reasoning of the court that remitted the matter. An appeal on a point of law is not a rehearing of the planning merits. The court will not interfere with an inspector’s interpretation of a development plan unless it is perverse or incapable of being borne by the words used. The appeal was dismissed.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of his appeal against an enforcement notice concerning the use of two premises on Edgware Road as a café or restaurant.

An earlier inspector’s decision had been remitted after a successful statutory appeal. A second inspector again dismissed the appeal, finding that the use harmed the character and function of the relevant Central Activities Zone frontage and that late-night operation would cause noise and disturbance. The claimant challenged the decision on two alleged errors of law and argued that an apparent reference to extensive A1 premises could not be corrected.

1. Correction of decision letter. The court admitted the inspector’s evidence and corrected the reference to extensive A1 premises so that it read extensive A3 premises. Under R v Westminster City Council ex parte Ermakov [1996] 2 AER 302, evidence may exceptionally elucidate or correct a decision, but the function is generally elucidation rather than fundamental alteration. The correction was obvious, modest, caused no prejudice and did not substantially change the decision. Section 56 of the Planning and Compulsory Purchase Act 2004 did not apply, but did not exclude this residual power to correct an obvious clerical error.
2. Use of the earlier inspection decision. The second inspector was entitled to use the earlier inspector’s factual findings and subjective assessment, save insofar as they conflicted with the High Court’s reasoning on the earlier appeal. The court approved this formulation, consistently with Newbury District Council v Secretary of State for the Environment (1988) 55 P&CR 100.
3. Planning judgment. The inspector was entitled to treat the Stress Area designation, the concentration of non-A1 uses, cumulative effects and the evidence concerning pedestrian flows and environmental quality as relevant to the development plan policies. A nil use was not a non-A1 use for the purposes of Policy SS 5. The inspector’s interpretation was at least one which the policy could bear and was not perverse; the approach in R v Derbyshire County Council ex parte Woods [1997] JPL 958 applied.
4. Scope of the statutory appeal. An appeal under section 289 identifies errors of law and does not permit a rerun of the inquiry. The principles in ELS Wholesale (Wolverhampton) Limited v Secretary of State for the Environment (1987) P&CR 69 and R (on the application of Newsmith Stainless Steel Limited) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 were applied. No error of law was established.
5. The second ground, concerning an 11 pm closing condition, could not affect the result because the enforcement notice was upheld. It also failed on its merits because the inspector had ample evidence of night-time noise and disturbance. The appeal was dismissed and the inspector’s decision remained effective. The Council’s application for a second set of costs was refused under Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 42.

• High Court (Administrative Court): An earlier appeal against the first inspector’s decision was allowed and the matter remitted for rehearing. The second inspector’s decision was then challenged under section 289 of the Town and Country Planning Act 1990. The present appeal was dismissed.