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

A planning challenge must identify an error of law. Disagreement with an inspector’s factual assessment or planning judgment does not satisfy that requirement. An inspector may refuse a split permission where the application and proposed use are interdependent and the suggested permission would not impose the claimed limitation on use. A local planning authority deciding whether to take direct enforcement action must consider relevant matters, including the prospects and consequences of a challenge to the underlying planning decision. Where it has done so, the court will not substitute its own view.

The claimant challenged an inspector’s refusal of retrospective planning permission and decision to uphold an enforcement notice concerning extensions and a timber and wire cat enclosure. The challenges were brought under sections 288 and 289 of the Town and Country Planning Act 1990. An earlier application concerning the enforcement notice had been rejected by Foskett J as unarguable.

The claimant later sought judicial review of the local authority’s decision to use its direct action powers under section 178 of the Act. He alleged that the authority had failed to consider the prospects and consequences of success in the section 288 challenge. The issues were whether the planning challenge disclosed an error of law and whether the enforcement decision was unlawful.

1. The section 288 challenge was dismissed. The inspector’s conclusion that the cage was readily apparent to neighbouring occupiers was a factual and planning judgment. A challenge based only on disagreement with that judgment disclosed no error of law. The inspector had also been entitled to consider the effect of the cage on the setting of the locally listed building and the character of the conservation area, whether or not it was visible from neighbouring properties.

2. The inspector was entitled to refuse a split permission. The application, as framed, concerned the keeping and breeding of cats in the structures and imposed no limit confining that use to an ancillary residential activity. The inspector was entitled to refuse permission for the cat-related use and the associated structures where the level of use was disputed. The claimant had not asked the inspector to separate the acceptable building elements from the unacceptable cage.

3. The enforcement notice required removal only of the timber and wire cage. The side and garage extensions were not struck by the notice, although their use for keeping and breeding cats could give rise to enforcement proceedings if it amounted to a material change of use.

4. Permission to apply for judicial review was refused. The local authority had taken full account of relevant factors, including the prospects of success of the section 288 challenge and the fact that identical grounds had already been held unarguable in the section 289 proceedings. The judicial review was therefore wholly unarguable and proceeded on a false premise.

5. The interim injunction was discharged. Costs of £3,048 were ordered in favour of the Secretary of State, payable within three days, and costs of £20,330 were ordered in favour of the London Borough of Barnet, payable within 14 days.

The inspector refused retrospective planning permission and upheld the enforcement notice in a decision dated 21 March 2007. High Court (Administrative Court): Foskett J rejected permission in the section 289 challenge on 17 October 2007. In the present proceedings, Mr Justice Ouseley dismissed the section 288 challenge and refused permission for judicial review of the local authority’s enforcement decision.