Williams, R (on the application of) v Secretary of State for Communities & Local Government

Permission to appeal in a planning enforcement case should be granted where a proposed ground is properly arguable, even if it is not strongly arguable. An inspector’s factual assessment of whether works substantially completed a right of way is reviewable for legal error, but the character of the works must be assessed against the physical features necessary to their actual use. An inspector is entitled to use expert knowledge, but must explain how that knowledge bears on a material issue, including the period reasonably required to relocate a harmful use.

The claimant sought permission to appeal against a planning inspector’s decision concerning enforcement notices relating to the use of land for pallet storage, vehicle repairs and spraying, and the construction of hard surfacing and an access track.

Three proposed grounds alleged errors concerning a suggested planning condition, the date on which the access track was substantially completed, and the six-month compliance period allowed for relocating the pallet business. The court considered whether two grounds were arguable and whether the third disclosed an arguable error of law.

1. Permission granted in part. The first ground, concerning the inspector’s treatment of a proposed condition limiting the height and extent of stored pallets, was arguable. The inspector may have failed to take proper account of the effect of section 187A(7) of the Act and the availability of further enforcement action after an alleged breach. The concern about compliance with the condition also raised an arguable issue under paragraph 28 of Circular 11/95.
2. The ground concerning the access track was not arguable. The principle in Cowen v Secretary of State for the Environment [1999] 3 PLR 108 was that whether works improved an existing track, without changing its basic character, was a question of fact and degree. That principle did not assist the claimant because the inspector found that no substantially completed right of way existed before the relevant date. The bell-mouth was an integral and necessary feature of the vehicle access which was subsequently used. The inspector was therefore entitled to find that the character of the track had changed after the relevant date.
3. The ground concerning the compliance period was also arguable, although only weakly so. An inspector is an expert tribunal and may take account of matters within professional expertise, but must give reasons for doing so. The inspector increased the period for relocation to six months, but it did not appear that he had considered the particular planning effects of the breach when assessing the evidence that 18 months to two years was required.
4. Permission was granted on the first and third grounds only. The claimant was directed to re-serve the appellant’s notice and comply with the applicable directions and skeleton-argument rules. Costs were adjourned to the full hearing.

The application arose from a planning inspector’s decision dated 4 April 2007 concerning two enforcement notices served on 28 February 2006. The Administrative Court granted permission to appeal on two grounds and refused permission on the access-track ground.