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

A remittal under section 289 of the Town and Country Planning Act 1990 does not require the Secretary of State to rehear every ground of an enforcement-notice appeal de novo. The Secretary of State has a public-law discretion as to the scope of the rehearing. It must be sufficient to correct the identified error of law and to produce a determination in accordance with the court’s opinion.

Findings and conclusions unaffected by the error ordinarily need not be revisited unless new evidence, a material change of circumstances or other exceptional circumstances justify doing so. An unclear administrative letter does not create a legitimate expectation that an otherwise closed ground will be reopened.

The appellant challenged five enforcement notices relating to non-agricultural uses of former farm buildings. An inspector had dismissed the relevant appeals. By a consent order under section 289 of the Town and Country Planning Act 1990, the High Court remitted the inspector’s decisions because ground (a) had been considered compendiously rather than separately.

On remittal, a newly appointed inspector limited the new inquiry to ground (a), and to new evidence or changed circumstances relevant to ground (f). He excluded ground (d), finding that the appellant sought only to reargue evidence previously considered. Mitting J dismissed judicial review of that decision: [2009] EWHC 234 (Admin).

The appeal raised whether a section 289 remittal required a complete de novo rehearing and whether a Planning Inspectorate letter had already required ground (d) to be reheard.

1. Appeal dismissed. Richards LJ, with whom Wilson and Pill LJJ agreed, held that a remittal under section 289 of the Town and Country Planning Act 1990 does not set aside or quash the Secretary of State’s decision. It requires a rehearing adequate to correct the error of law and to yield a determination in accordance with the court’s opinion.

2. The expression “the matter” places the enforcement-notice appeal before the Secretary of State. It does not prescribe the scope of the rehearing. The Secretary of State therefore has a discretion, exercisable under ordinary public-law principles, to decide what must be reconsidered. The court followed the approach in Newbury, [1988] JPL 185, and rejected the contrary reading of that authority in Kingswood, [1988] JPL 248.

3. Matters unaffected by the identified legal error need not ordinarily be reopened. They may be revisited where new evidence, a material change of circumstances or policy, or other exceptional circumstances make that appropriate. The concept of a rehearing is context-dependent and does not invariably mean a rehearing in its fullest sense.

4. The consent order identified the error as the compendious treatment of ground (a). It therefore required separate reconsideration of ground (a), but gave no direction requiring ground (d) to be reopened. The inspector’s exclusion of ground (d) was not unlawful merely because the appeal had been remitted.

5. The Planning Inspectorate’s letter of 15 January 2008 was unclear and, read with the earlier correspondence, did not decide that all grounds would be reheard de novo. It could not found a legitimate expectation that ground (d) would be reopened.

6. The court left unresolved whether the inspector had a delegated power under rule 21 of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 to determine the inquiry’s scope. That vires point had not been argued. Subject to it, the inspector’s clear and reasoned preliminary determination had practical merit.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal: [2009] EWCA Civ 1365 .
• High Court (Administrative Court): Mitting J dismissed the claim for judicial review of the inspector’s decision to exclude ground (d): [2009] EWHC 234 (Admin) .
• High Court: a consent order under section 289 of the Town and Country Planning Act 1990 remitted the five enforcement-notice decisions for redetermination because ground (a) had been dealt with compendiously rather than separately.