Singh v Secretary of State for Communities and Local Government & Anor (including Ruling)

On an appeal under section 289 of the Town and Country Planning Act 1990, an enforcement notice may be varied by deleting part of an allegation. Whether that is a permissible variation, and whether it causes injustice, depends on the facts and degree of change.

The decisive consideration is whether the course adopted deprives a party of a fair determination of issues properly raised and prepared for at the inquiry. An inspector who removes part of an enforcement case must still determine the remaining grounds of appeal that materially address the allegations and could affect the outcome. Failure to do so may require remission for redetermination.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision concerning enforcement notices affecting two houses in multiple occupation. The notices alleged unauthorised extensions and an intensification or alteration of residential use.

The inspector found the use allegations unclear. He deleted those allegations and their associated requirements under section 176, but then treated the related ground (c) and ground (f) arguments as no longer requiring consideration. The claimant argued that this deprived him of decisions on issues which could have resulted in the notices being quashed or the appeals being allowed. The central issue was whether the inspector had lawfully dealt with the defective notices and the grounds of appeal.

1. Appeal allowed and matter remitted. The inspector’s decision was legally flawed because, after deleting the use allegations from the enforcement notices, he failed to determine substantial grounds of appeal which had been raised, supported by evidence and prepared for at the inquiry.

2. Section 176 permits correction of a defect or variation of an enforcement notice where the correction or variation will not cause injustice. Variation may be achieved by deletion. Whether a change amounts to a permissible variation is a matter of fact and degree, and the question of injustice will often inform whether the proposed change falls within the statutory power.

3. The inspector was entitled to conclude that the notices were unclear as to the distinction between flats and bedsits and as to the steps required for compliance. That finding did not, however, justify treating all related grounds as immaterial. The claimant had expressly raised ground (c) arguments that the alleged works and increased number of units did not constitute development or a breach of planning control. He had also raised ground (f) arguments concerning whether the requirements were excessive or could be satisfied by the alterations already made.

4. The inspector’s approach deprived the claimant of findings which might have disposed of the enforcement proceedings. The availability of other procedures, such as a lawful development certificate, did not remove the claimant’s entitlement to have the issues determined in the enforcement appeals. Nor could the court treat the inspector’s express decision not to consider those matters as having been overtaken by incidental observations elsewhere in the decision letter.

5. The finding that the development was acceptable in “use terms” was itself potentially ambiguous and did not provide a reasoned determination of the claimant’s contrary arguments. The matter was therefore remitted to the Secretary of State for redetermination. The court invited further submissions on the precise order and on the outstanding judicial review application concerning costs.

The inspector’s decision dated 5 March 2010 upheld two enforcement notices with alterations and dismissed them in part. The High Court granted permission and allowed the section 289 appeal, remitting the matter to the Secretary of State for redetermination. The judgment did not finally determine the related judicial review application concerning the inspector’s costs decision.