Hilliard Brothers (Ewell) Ltd, R (on the application of) v Secretary of State for Communities & Local Government & Anor

In a planning challenge, reasons are adequate if they enable the reader to understand how the principal important controversial issues were resolved. A decision-maker need not address every material consideration or every argument separately. A challenge succeeds only where the reasoning creates substantial doubt that the decision-maker erred in law and the claimant has suffered substantial prejudice.

An inspector’s assessment of the weight to give a claimed planning fall-back position is ordinarily a matter of judgment. Where an enforcement notice requires removal of unauthorised bunds and hardstanding, restoration to a condition suitable for agriculture may be reasonable if removal itself achieves that result.

Hilliard Brothers applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of its planning appeal. It also sought permission to appeal under section 289 of the Town and Country Planning Act 1990 against dismissal of its enforcement appeal under section 174 of the Town and Country Planning Act 1990.

The disputes concerned hardstanding and earth bunds at a farm in the Metropolitan Green Belt. The claimant challenged the inspector’s reasons concerning alternative land, his treatment of an alleged lawful-use fall-back position, and the requirement to restore the land to a condition suitable for agricultural use. The central question was whether the inspector’s decision involved an error of law or materially flawed reasoning.

1. Disposition. The court granted permission to appeal under section 289 of the Town and Country Planning Act 1990, dealt with the appeal and the application under section 288 of the Town and Country Planning Act 1990 together, and dismissed both.
2. Adequacy of reasons. Applying South Bucks District Council v Porter [2004] UKHL 33, the reasons had to be intelligible and adequate, identify the conclusions on the principal important controversial issues, and disclose how material issues of law or fact were resolved. They could be brief and need not address every material consideration. A reasons challenge would succeed only where the claimant showed substantial prejudice arising from an inadequately reasoned decision.
3. The inspector had addressed the central contention that no alternative land was available for machinery, turf loading and customer parking. He identified an existing developed area which could potentially be used if its unauthorised car-storage use ceased, and explained why the associated inconvenience was not insurmountable. The reasons were adequate when read straightforwardly and as a whole.
4. The inspector was entitled to find that the evidence did not establish the claimed lawful warehousing and distribution use on area C1. He had correctly placed the burden on the claimant to prove the fall-back position on the balance of probabilities. His assessment of the uncertain and changing historical use, and the weight to attach to it, was a matter for him as the specialist decision-maker.
5. Under section 173(4)(a) of the Town and Country Planning Act 1990, an enforcement notice may require restoration of land to its pre-development condition. Here, removal of the bunds and hardstanding would render the land suitable for agriculture. The notice did not require the land actually to be used for agriculture, and the restoration requirement was neither excessive nor unreasonable.

• Inspector appointed by the Secretary of State: dismissed the claimant’s planning appeal and enforcement appeal in a decision letter dated 11 December 2006.
• High Court (Administrative Court): granted permission under section 289 of the Town and Country Planning Act 1990, considered both challenges on their merits, and dismissed the appeals.