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

Where a planning enforcement appeal is remitted after an error of law, the statutory requirement for a rehearing and determination does not invariably require every issue to be reopened. The court may limit the rehearing to matters necessary to give effect to its decision, particularly where separate grounds concern legally distinct questions and factual findings on one ground were unchallenged. A Ground (a) rehearing must nevertheless take account of planning policies and other relevant circumstances existing at the time of the redetermination. A de novo rehearing on one ground does not require other grounds, including Ground (d), to be reconsidered unless the remittal or the statutory scheme so requires.

The claimant challenged the Secretary of State’s handling of five appeals against enforcement notices concerning changes of use of farm buildings. The inspector had rejected Ground (d), based on the ten-year enforcement time limit, but had dealt with Ground (a), concerning whether planning permission ought to be granted, compendiously rather than separately for each site. The Secretary of State conceded an appeal under section 289 of the Town and Country Planning Act 1990, and the matter was remitted for redetermination. The claimant argued that the remittal required a rehearing of all grounds and evidence. The central issue was whether the Secretary of State could confine the rehearing to Ground (a).

1. Claim dismissed. The Secretary of State was entitled to limit the rehearing to Ground (a), the ground giving rise to the legal error.
2. Section 289(5)(a) of the Town and Country Planning Act 1990, and CPR PD 52 paragraph 22.6C(14), require remittal for rehearing and determination in accordance with the court’s opinion. Neither provision requires a rehearing of the whole matter. The scope may be limited to matters necessary to correct the identified error.
3. Grounds (a) and (d) involve separate planning decisions. Ground (d) concerns whether enforcement action could be taken, including whether there had been ten years’ continuous use under section 171B(3). Ground (a) concerns whether permission should be granted. Unchallenged findings of past fact on Ground (d) need not be reopened merely because an error occurred in the separate assessment under Ground (a).
4. A Ground (a) rehearing is de novo in respect of that ground and must take account of relevant changes in planning policy and circumstances since the original determination. That does not require the remaining grounds to be reopened, subject possibly to Ground (g).
5. The Secretary of State’s correspondence, read as a whole, sufficiently confined the remittal to Ground (a). The inspector therefore committed no material error by refusing further evidence on Ground (d). The claimant was ordered to pay half the Secretary of State’s costs. Permission to appeal was refused, with 21 days to appeal from receipt of the approved transcript.

This was a first-instance judicial review. The claimant’s planning appeals had previously been remitted by consent order dated 11 May 2007 after an appeal under section 289 of the Town and Country Planning Act 1990.