McCleave, R (on the application of) v Canterbury City Council

A claim under Town and Country Planning Act 1990, section 288, is concerned with the legality of the challenged planning decision. It is not an opportunity to reopen the planning merits or to conduct an enforcement appeal.

New evidence and factual points not raised before the inspector will generally not be admitted where they require fresh evaluative judgment. In any event, a claimed under-enforcement is immaterial if it could not have affected the inspector’s planning conclusion. The claim was dismissed.

The claimant challenged an inspector’s dismissal of his appeal against Canterbury City Council’s refusal of planning permission for the retention, completion and residential use of an uncompleted building at 19 Hollow Street, Chislet.

The inspector had found harm to the countryside, an area of high landscape value and a conservation area. The claimant ultimately relied on an OS map and alleged that a small part of the site had established use rights and had been under-enforced. The court also considered issues concerning the conduct of the inquiry and the claimant’s capacity to conduct proceedings.

1. Claim dismissed. The claimant’s challenge under section 288 of the Town and Country Planning Act 1990 disclosed no basis for quashing the inspector’s decision.
2. The claimant’s principal point was not taken at the inquiry. It depended on new evidence and a fresh judgmental assessment of an OS map. It was therefore inappropriate to admit or entertain the point at this stage.
3. In any event, the alleged under-enforcement could not have affected the result. The proceedings concerned a planning appeal, not an enforcement appeal. The inspector had made clear that no planning permission had been granted for the building or its use. The enforcement notices were background material and the alleged discrepancy did not alter the planning considerations.
4. The court was satisfied that the inspector had conducted the inquiry acceptably. The claimant had not established intimidation or other procedural unfairness.
5. The court considered the other possible grounds identified in the defendant’s skeleton argument and found no substance in them. The claimant’s capacity was presumed under Part 21 of the Civil Procedure Rules because no expert report directed by an earlier order had been lodged.
6. The claimant agreed to pay the first defendant’s costs, assessed at £5,000, with payment arrangements to be recorded separately.