Malcolm, R (on the application of) v Harrogate Borough Council

An enforcement appeal under the Town and Country Planning Act 1990 succeeds only where the challenged decision contains an error of law. Disagreement with an inspector’s factual assessment is insufficient unless the finding is irrational or perverse. The burden lies on the appellant to establish, on the balance of probabilities, that the alleged breach did not occur or that permitted development rights applied. An inspector may correct or vary an enforcement notice under section 176 where the change causes no injustice, and re-service is unnecessary where the same notice has been amended on appeal. Planning permission and conditions fall to be assessed by reference to the application as determined; a materially enlarged development requires a fresh application.

Mr Malcolm Grange challenged two decisions of an inspector dated 13 July 2007 concerning White Wall Farm. Appeal A concerned an enforcement notice alleging a mixed agricultural and caravan-site use. The inspector varied the notice to identify residential use of the caravan and dismissed appeals under grounds (b), (c) and (e) of section 174(2) of the Town and Country Planning Act 1990. Appeal B concerned conditions attached to permission for conversion of barns, including a condition limiting the development to the amended site shown in the application.

The claimant sought relief under sections 289 and 288 of the Act. The central questions were whether the inspector had erred in law, lawfully applied the permitted-development regime, and properly retained the planning condition.

The claims were dismissed. Permission under sections 289 and 288 of the Town and Country Planning Act 1990 was refused. The claimant was ordered to pay the defendant’s costs, to be assessed if not agreed.

1. The court’s jurisdiction was confined to errors of law. The inspector’s findings of fact could be challenged only if perverse or irrational. Mere disagreement with those findings did not establish an error of law.
2. On an enforcement appeal, the appellant bore the burden of proving, on the balance of probabilities, that there was no breach of planning control or that the caravan benefited from the permitted-development rights in the Town and Country Planning (General Permitted Development) Order 1995, read with the Caravan Sites and Control of Development Act 1960.
3. The inspector lawfully varied the enforcement notice under section 176. The amendment narrowed the allegation to residential use, reflected the agreed primary use, and caused no demonstrated injustice. There was no requirement to re-serve an enforcement notice amended by the inspector during the appeal.
4. The statutory caravan exemption did not apply during periods when the site was not being used for the specified seasonal agricultural, forestry, building or engineering accommodation. The works relied upon were largely maintenance, repairs and minor jobs. Even if some works could trigger the right, it would operate only while the relevant works were under way, subject to prompt removal of the caravan.
5. For Appeal B, the permission had to be considered as granted on the application before the decision-maker. Enlarging the site would create a substantially different development and could affect matters on which interested persons might comment. The inspector was therefore entitled to retain the condition.

First-instance judicial review and statutory challenges in the Administrative Court. The two appeals before the inspector were challenged under sections 289 and 288 of the Town and Country Planning Act 1990; both challenges were dismissed.