East Hertfordshire District Council, R (on the application of) v First Secretary of State

Cause of action estoppel applies to an Inspector’s determination on an enforcement-notice appeal under grounds (b) to (d) of the Town and Country Planning Act 1990 where the issue has genuinely been adjudicated. A decision allowing a ground (c) appeal is ordinarily final and conclusive. That principle does not apply where the Inspector, because of a fundamental lack of information, reaches no conclusion on whether there was a breach of planning control and expressly contemplates a further notice. In exceptional cases, special circumstances may justify not applying cause of action estoppel inflexibly. The public interest in effective planning control and fairness to affected neighbours may be relevant to that assessment.

The claimant local planning authority issued an enforcement notice alleging that a barn had been erected otherwise than in accordance with approved plans. The first Inspector allowed the appeal under ground (c), because the evidence and plans were so inadequate that he could not determine whether there had been a breach, and indicated that a further notice could be issued.

The authority issued a second, identical notice. The second Inspector held that the first decision created a cause of action estoppel and that the second notice was a nullity. The judicial review concerned whether the first decision was final and conclusive and, alternatively, whether special circumstances justified an exception to estoppel.

1. Cause of action estoppel. The claimant correctly accepted that cause of action estoppel survives R v East Sussex County Council, ex parte Reprotech [2003] 1 WLR 348; [2002] UKHL 8 in the context of enforcement-notice appeals. The principle of finality applies to statutory adjudications determining legal rights, including appeals under grounds (b) to (d) of section 174(2) of the Town and Country Planning Act 1990.
2. Nature of the first decision. An ordinary ground (c) decision, reached on the balance of probabilities, is final and conclusive. The first Inspector’s letter was materially different. Read as a whole, it showed that he could not determine whether the barn substantially departed from the approved plans because the relevant information was fundamentally lacking. He had therefore not adjudicated the issue and expressly contemplated a further enforcement notice.
3. Special circumstances. The exception recognised in Arnold v National Westminster Bank Plc [1991] 2 WLR 1177 is not confined to issue estoppel or to points omitted from earlier litigation. Special circumstances may justify non-application of cause of action estoppel where inflexible application would produce injustice.
4. The circumstances were exceptional. The public interest in determining whether a breach affected a listed building, and the interests of the neighbouring owner, favoured allowing the second appeal to proceed. The interested party suffered no comparable injustice because it could present evidence that no breach had occurred.
5. The application for judicial review was allowed. The second Inspector’s decision letter dated 25 January 2006 was quashed. The defendant was ordered to pay the claimant’s costs of £7,150. Permission to appeal was granted.

The judgment records two earlier administrative decisions:

• First Inspector: allowed the appeal against the first enforcement notice on ground (c), because the information was insufficient to determine whether there had been a breach, and indicated that a further notice could be issued.
• Second Inspector: held that the second notice was a nullity because of cause of action estoppel and directed that it be quashed.
• High Court (Administrative Court): allowed judicial review and quashed the second Inspector’s decision.