Nestorova-Goremsandu v Secretary of State for Communities & Local Government & Anor

On a statutory appeal concerning an enforcement notice, the court may uphold a decision despite a failure to mention a material consideration if satisfied that the decision-maker would inevitably have reached the same result. The burden lies on the appellant to establish the relevant limitation defence. For the purpose of the four-year enforcement period, whether operations were substantially completed requires a holistic assessment of the totality of the works originally contemplated, including internal and external works. Planning judgment and the weight given to evidence are primarily matters for the inspector. Decision letters need address the principal important controversial issues and must be read in a straightforward manner. A reasons challenge requires substantial prejudice. Costs may be awarded where unreasonable conduct is established.

The appellant challenged, under section 289 of the Town and Country Planning Act 1990, two decisions of a planning inspector dated 17 June 2009. The inspector had dismissed her ground (d) appeal against an enforcement notice requiring demolition of a single-storey extension and had ordered her to pay the respondent council’s costs.

The appellant argued that the inspector failed to consider evidence from Mr Hassan that he had worked on the extension before the relevant four-year period, gave inadequate reasons, and made a material error of fact when deciding that it was unreasonable to pursue a ground (f) appeal. The central issues were whether any omission concerning Mr Hassan’s evidence was material, whether the reasons were legally adequate, and whether the costs decision disclosed an error of law.

1. Appeals dismissed. The inspector’s decisions were not vitiated by legal error.
2. The inspector had to consider relevant material, but the omission to mention Mr Hassan’s evidence did not require quashing. The inspector had found that an independently verified aerial photograph showed no extension in July 2003. Even if Mr Hassan’s evidence were accepted without reservation, it concerned work after that photograph and did not undermine the decisive finding. The court was satisfied that the inspector would inevitably have dismissed the ground (d) appeal.
3. The evidence also failed to establish substantial completion before the relevant date. Applying Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22; [2003] 1 WLR 983, the assessment was holistic and required consideration of the totality of the operations, including the internal state of the extension. Mr Hassan’s evidence about repairs, lighting, furniture, plastering, carpeting and the kitchen was inconclusive. The appellant therefore failed to discharge the burden of proof.
4. The reasons challenge failed. The inspector explained that the extension was not substantially completed within the statutory period and why the appellant’s evidence was rejected. The reasons were comprehensive and comprehensible. Applying South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR, a challenge requires substantial prejudice, which was neither alleged nor shown.
5. The costs decision disclosed no error of law. Even assuming that the inspector had misstated the extension’s depth, the proposed works exceeded the limits for permitted development under Article 2 and Part 1 of Schedule 2 to the General Permitted Development Order 1995. It was therefore open to the inspector to regard the ground (f) appeal as unreasonable.

1. High Court (Administrative Court): dismissed the statutory appeals under section 289 of the Town and Country Planning Act 1990 against the inspector’s enforcement and costs decisions dated 17 June 2009.
2. Planning inspector: dismissed the appellant’s appeal against the enforcement notice and ordered her to pay the council’s costs.