Britannia Assets (UK) Ltd v Secretary of State for Communities & Local Government & Anor (Rev 1)

On an appeal under section 289 of the Town and Country Planning Act 1990, the High Court determines points of law arising from the Secretary of State’s enforcement-notice appeal. The statutory appeal is confined to the grounds in section 174, subject to jurisdictional questions such as whether the notice is a nullity. Challenges to the planning authority’s decision to issue the notice on residual public-law grounds must ordinarily be brought promptly by judicial review. A planning permission must be interpreted by reference to the legal and factual context when it was granted, not a later Use Classes Order. A lawful use may be abandoned objectively. The precautionary approach in Waddenzee governs whether an appropriate habitats assessment is required.

The applicant challenged an Inspector’s decision under section 289 of the Town and Country Planning Act 1990. The Inspector had quashed one enforcement notice and upheld, subject to correction and variation under section 176, eleven others concerning a former petroleum-storage site used as a trading estate and haulage depot.

The applicant alleged errors of law concerning the local planning authority’s compliance with section 172, the scope of historic planning permissions, abandonment, protected sites, factual findings, bias and the Inspector’s correction of the notices. The central questions were the proper scope of the statutory enforcement appeal and whether the Inspector’s decision disclosed an error of law.

1. Outcome. The appeal was dismissed. The Inspector had made no material error of law in upholding notices B to L.
2. Scope of the statutory appeal. Sections 174, 176 and 285 of the Town and Country Planning Act 1990 confine an Inspector’s jurisdiction, once an enforcement notice is found not to be a nullity, to the statutory grounds of appeal and the powers conferred by section 176. A challenge to the planning authority’s consideration of expediency under section 172(1), including residual public-law grounds such as irrationality, unfairness or improper considerations, ordinarily lies by prompt judicial review. R v Wicks and Gazelle Properties Ltd v Bath & North East Somerset Council supported that distinction.
3. An Inspector may determine whether a notice is a nullity because a nullity has no legal existence and the Inspector has no jurisdiction to determine its merits. The Inspector nevertheless erred in considering the authority’s compliance with section 172, although remittal would serve no purpose and the applicant could not convert the section 289 proceedings into judicial review. Rhymney Valley DC v Secretary of State for Wales was distinguishable.
4. Planning permission and abandonment. The 1962 permission authorised the specific sui generis use of storing and distributing petroleum products. It could not be interpreted by reference to the Town and Country Planning (Use Classes) Order 1987. The permission had to be assessed in the context existing when it was granted. The later removal of the tanks and associated infrastructure, the prolonged cessation of the use and the commencement of materially different uses justified the conclusion that the lawful use had been abandoned. The court applied the approach in Hartley v Minister of Housing and Local Government and Hughes v Secretary of State for the Environment, Transport & Regions.
5. Protected sites. Applying Article 6(3) of the Habitats Directive and regulation 48 of the Conservation (Natural Habitats etc) Regulations 1994, the Inspector was entitled to find that significant effects on the protected sites could not be excluded on the basis of objective information and that the development could adversely affect site integrity. The approach was consistent with Waddenzee and R (Hart) DC v Secretary of State. A possible fallback-use issue was left as a tentative, expressly obiter view.
6. The proposed proportionality challenge was not properly before the Inspector and did not involve a settled domestic principle which she was required to apply without being referred to it. The remaining complaints concerning planning judgment, factual findings, bias and correction or variation of notices disclosed no error of law. The court refused permission on the bias ground.

The judgment does not state a prior court decision in the same proceedings. It concerns an appeal to the High Court under section 289 of the Town and Country Planning Act 1990 from an Inspector’s decision on appeals under section 174.