Basi & Anor v London Borough of Redbridge

On an application for permission to challenge an enforcement notice appeal decision, a mistake of fact gives rise to an error of law only where: there was a mistake about an existing fact; the fact was objectively verifiable and uncontentious; the applicant was not responsible for the mistake; and the mistake materially influenced the decision.

Disputable fresh evidence which seeks to reopen factual conclusions does not satisfy that test. An inspector is entitled to assess the reliability and weight of evidence, and need not give decisive weight to a party’s account. Whether to adjourn an inquiry to obtain further evidence is ordinarily a matter for the inspector’s discretion.

The claimants sought permission to challenge an Inspector’s decision on an enforcement notice appeal under section 289 of the Town and Country Planning Act 1990. The enforcement notice concerned an outbuilding used as a possible residential unit, gym and storage facility.

The Inspector rejected the claimants’ argument that the building was permitted development under Schedule 2, Class E of the Town and Country Planning (General Permitted Development) Order 1995. The claimants alleged errors of law concerning an alleged mistake of fact, the weight given to evidence, failure to adjourn, and the treatment of storage use. The central question was whether any ground disclosed an arguable legal error.

1. Permission refused. The Inspector’s decision was not arguably unlawful. Costs were ordered in favour of the Secretary of State in the sum of £2,672.
2. The court applied the four-part test stated in E v Secretary of State for the Home Department [2004] EWCA Civ 49: there must be a mistake about an existing fact; the fact must be objectively verifiable and uncontentious; the applicant must not be responsible for the mistake; and the mistake must have materially influenced the tribunal’s reasoning.
3. The proposed evidence from Mr Tarry did not establish an uncontentious, objectively verifiable pre-existing fact. It was disputed fresh evidence seeking to reopen the Inspector’s factual assessment. The claimants were also responsible for any evidential mistake because they could have obtained the relevant evidence for the inquiry and had themselves advanced the account said to be deceptive.
4. The Inspector was entitled to have serious reservations about Mr Basi’s credibility and was not required to give decisive weight to his evidence. The Inspector’s decision not to adjourn the inquiry to call further witnesses was within his discretion, particularly as no adjournment had been sought.
5. The analogy with South Oxfordshire District Council v Secretary of State for Transport and the Regions [1999] CO1456 did not compel the same conclusion. The Inspector was entitled to distinguish storage associated with the appellants’ business from uses ordinarily incidental to residential occupation.

The judgment concerned an application for permission to challenge an Inspector’s decision on an enforcement notice appeal under section 289 of the Town and Country Planning Act 1990. Permission was refused.