Lakeheath Investments Ltd, R (on the application of) v Secretary of State for Communities and Local Government

Permission to appeal against a planning inspector’s enforcement decision should be granted where there is an arguable failure to serve the landowner and a realistic possibility of substantial prejudice. Service under the Town and Country Planning Act 1990 may occur through actual communication, even if the prescribed deeming provisions were not used. Whether statutory service was achieved, whether the owner knew of the enforcement action, and whether any failure caused substantial prejudice may require oral evidence and cross-examination. The permission hearing should not become a rehearing of the planning appeal. Evidence should be confined to the service issue, with prejudice generally considered on the papers.

The claimant, owner of premises subject to an enforcement notice concerning an allegedly unauthorised rear extension, applied for permission to appeal under section 289 of the Town and Country Planning Act 1990. A planning inspector had dismissed the tenant’s appeal against the notice. The claimant argued that it had not been properly served and had consequently been unable to provide evidence that parts of the development were immune from enforcement because they had been substantially completed more than four years earlier.

The court considered the statutory requirements for service, the possibility that the claimant had nevertheless received actual notice, and the alleged prejudice. It also considered proposed new evidence and whether the Ladd v Marshall test applied. Permission was granted so that the service and prejudice issues could be investigated at a full hearing.

Permission granted. The court considered that the service challenge was arguable and that the claimant’s proposed evidence raised issues which could not fairly be resolved at the permission stage.

1. Under section 172(2)(a) of the Town and Country Planning Act 1990, an enforcement notice must be served on the owner and occupier. Section 174(1) permits a person with an interest in the land to appeal whether or not the notice was served. A failure to serve may be disregarded under section 176(5) only where neither the appellant nor the person concerned was substantially prejudiced.
2. The statutory methods in section 329 deem specified steps to constitute service. They do not exclude actual service. If the notice has come to the attention of the relevant person, service has occurred even if one of the prescribed routes was not followed.
3. It was arguable that reasonable inquiry would have identified the claimant despite the outdated Land Registry name. The court therefore could not conclude at this stage that the alternative-service provisions applied, or that any failure was immaterial.
4. The claimant’s evidence raised factual issues concerning receipt of the enforcement correspondence, the identity and knowledge of the relevant individuals, and substantial prejudice. Those issues required investigation on a full hearing, potentially including oral evidence and cross-examination. The court declined to draw adverse conclusions before that opportunity had been provided.
5. The proposed evidence should not turn the appeal into a rehearing of the inspector’s planning decision. Oral evidence was to be limited to service. The prejudice issue, if pursued, was to be considered on the papers. Statements were directed within six weeks, with responses within 21 days, and a one-day hearing was ordered.

• Planning inspector: An appeal against the enforcement notice was dismissed on 5 July 2012.
• High Court (Administrative Court): Permission to appeal was granted. The service and prejudice issues were directed to a full hearing.