Flattery & Anor v Secretary of State for Communities and Local Government & Anor

In planning law, informal statements or past inaction by a local planning authority do not determine whether a use is lawful and cannot prevent later enforcement where the statutory code provides the means of establishing lawfulness. A certificate of lawfulness must be decided on the evidence and, where relevant, on the balance of probabilities.

An enforcement notice may be corrected or varied under section 176 of the Town and Country Planning Act 1990 if the change causes no injustice. Whether structures such as portacabins are buildings is a matter of fact and degree, assessed by size, permanence and physical attachment. Planning challenges cannot be used to reopen the merits or the decision-maker’s assessment of evidence.

The claimant challenged an Inspector’s dismissal of appeals concerning certificates of lawful use or development and enforcement notices relating to a former farm site used as a scrap yard. The challenge was brought under sections 288 and 289 of the Town and Country Planning Act 1990.

The issues included legitimate expectation and estoppel, human-rights compatibility, alleged bias and procedural unfairness, whether portacabins and racking were buildings and operational development, the correction of the enforcement notices, the continuity of use required for lawfulness, and the refusal of costs.

1. Challenge dismissed. The court dismissed the application under section 288 of the Town and Country Planning Act 1990 and refused leave to appeal under section 289.
2. Legitimate expectation and estoppel could not assist the claimants. The statutory planning regime is a complete code. Informal and inconsistent views expressed by officers do not conclusively establish lawfulness, and previous failure to enforce does not prevent later enforcement. Only a formal decision under the statutory procedure has that effect.
3. The Inspector was entitled to decide the certificate applications on the evidence before her and on the balance of probabilities. The burden lay on the appellants to establish a continuous lawful use. Her findings that successive material changes, changes in the planning unit and periods of inactivity prevented the necessary continuity disclosed no error of law.
4. The Inspector applied the correct approach to the portacabins and racking. Whether they were buildings within section 336 was a matter of fact and degree. Their size, permanence, weight, lack of easy mobility and continued position on the site supported the conclusion that they were buildings and that their installation was operational development.
5. Section 176 conferred a broad power to correct defects and vary an enforcement notice, provided no injustice was caused. The amendments rationalised the notices, did not widen the enforcement action as a whole and caused no unfairness.
6. The human-rights analysis was sound. The relevant planning decisions were generally declaratory, and any interference with Article 8 and Article 1 of the First Protocol was proportionate. The Inspector had provided a fair hearing and there was no evidential basis for bias or Article 14 discrimination.
7. The court would not re-take the Inspector’s decision or substitute its view of the evidence. The refusal of costs was rational because unreasonable behaviour causing unnecessary expense had not been shown.

First-instance judicial review and statutory challenge. The court dismissed the application under section 288 of the Town and Country Planning Act 1990 and refused leave to appeal under section 289.