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

An inspector determining an enforcement appeal must address whether a breach can be remedied by proportionate conditions. Where a building is otherwise within permitted development limits, concerns about its possible future non-agricultural use may be addressed by conditions regulating features such as windows and doors. An inspector must not base the outcome on a decisive proposition that was not put to the appellant. A conclusion expressed through double negatives and unsupported assumptions may be Wednesbury unreasonable, and failure to raise a determinative issue may breach natural justice.

The claimant challenged an inspector’s decision upholding an enforcement notice concerning an agricultural barn and associated hard standing. The claimant had followed the prior-approval procedure under the General Permitted Development Order 1995. The inspector found that the building was not designed for agricultural purposes and that the hard standing exceeded the permitted area. The central issues were whether the breach could be remedied by conditions permanently blocking the windows and doors and limiting the hard standing, and whether demolition was necessary.

1. The inspector’s decision was quashed and the matter was remitted for reconsideration. The inspector had treated the concerns about the building’s agricultural purpose and the hard standing as alternatively decisive, although both problems appeared capable of resolution by conditions.
2. The inspector could have imposed conditions requiring the permanent blocking of the door and window openings and limiting the hard standing to the five square metres available above the building’s 460 square metre floor area. Those conditions could have been imposed under ground (f) of section 174(2) of the Town and Country Planning Act, or in relation to a deemed planning permission under ground (a), with the powers in section 177.
3. The conclusion that some hard standing beyond five square metres was necessarily required for vehicle access was unsupported. The photographs showed a large entrance through which vehicles could enter and turn. The conclusion was therefore capable of being characterised as Wednesbury unreasonable.
4. Alternatively, the inspector had reached a determinative conclusion without putting the issue to the claimant. That was a breach of natural justice. The claimant had followed the procedure under the 1995 Order and should not have been treated as having intended to create an inevitable breach of that Order without the point being explored.
5. The enforcement notice required demolition of the building and hard standing. The inspector had already extended the compliance period from one month to six months. The decision was nevertheless impermissible because the inspector failed properly to consider a conditional remedy.

Costs were assessed at £10,500.41.

• High Court (Administrative Court): permission having been granted by Lloyd Jones J, the court allowed the challenge, quashed the inspector’s decision and referred the matter to a fresh inspector for further consideration.