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

An Inspector determining a planning appeal must not rely on a material factual assumption without evidence, particularly where the assumption is central to the decision. If information discovered during a site visit raises a new and important issue, elementary fairness requires the parties to be given a proper opportunity to address it. A use cannot be treated as lawful merely because it exists: the party asserting lawfulness must establish planning permission, immunity through the passage of time, or another legal basis. A decision founded on an unsupported and fundamental assumption is both procedurally unfair and affected by material error of law.

The claimant challenged an Inspector’s decision allowing an appeal against an enforcement notice concerning the use of a commercial unit as a place of worship. The Inspector treated adjoining units used for education and vocational training as authorised and relied on their relationship with the disputed use as a material consideration justifying departure from employment-area policy.

The claimant argued that the lawfulness of the adjoining educational use had not been raised or evidenced, that the information was discovered during the site visit, and that the Inspector’s assumption was materially erroneous and unfair. The court considered the applications under sections 288 and 289 of the Town and Country Planning Act 1990.

1. The appeal and application were allowed. The Inspector’s decision was quashed and the matter was remitted to the Secretary of State for reconsideration. The enforcement appeal was thereby revived.
2. The Inspector had no evidence that the educational use of Units 1a and 2 was authorised. The second defendant’s appeal notice concerned the use of Unit 1 and did not put the claimant on notice that the lawfulness of the adjoining units would be relied upon.
3. Where an Inspector discovers during a site visit a new issue which is material to the decision, the parties must be given a proper opportunity to comment. A local planning authority representative cannot reasonably be expected to deal at the site visit with a new and potentially complex question concerning the lawfulness of another use.
4. The starting position is that a change of use requires planning permission and is lawful only if supported by permission or if there is evidence that the use has existed for the relevant period. The burden lies on the party asserting lawfulness. It was therefore inappropriate and manifestly unfair to assume that an existing use was authorised merely because it existed.
5. The assumption was fundamental to the Inspector’s assessment of the planning merits. If the educational use was lawful, the reasoning concerning conflict with business users could be understood; if it was unauthorised, that reasoning could not justify departure from the development plan. The assumption therefore constituted both unfairness and a material error of fact amounting to an error of law.
6. The first defendant was ordered to pay the claimant’s costs of both proceedings, summarily assessed at £9,500.

The judgment does not state any subsequent appellate decision. It concerned a judicial review challenge and statutory appeal arising from an Inspector’s decision dated 27 February 2008.