Flynn & Anor v Secretary of State for Communities And Local Government & Anor

Under Town and Country Planning Act 1990, section 174, a person may appeal against an enforcement notice only if they have a legal or equitable interest in the land or are a relevant occupier. A relevant occupier must occupy the land by virtue of an express or implied licence both when the notice is issued and when the appeal is brought. Physical occupation, service of the notice, or another link with the land is insufficient. Whether a licence is implied depends on all the circumstances, including the parties’ relationship and the circumstances of occupation. The decision-maker must consider an arguable implied licence. There is no automatic entitlement to an oral hearing on that issue, provided the procedure is fair.

The claimants, travellers formerly resident at Dale Farm, challenged the Secretary of State’s decision that Mrs Flynn’s appeal against an enforcement notice was invalid. The notice alleged an unauthorised material change of use of an access track for residential occupation and the stationing of caravans.

The appeal form identified Mrs Flynn as the sole appellant and relied only on ground (g), namely that the compliance period was too short. The Secretary of State concluded that she had neither an interest in the land nor a written or oral licence from its owner. It was accepted that the decision-maker had not considered whether she had an implied licence, including one arising from acquiescence. The issues concerned the meaning of “interest in land” and “relevant occupier”, the lawfulness of the decision, and whether Article 8 required a wider right of appeal.

1. Meaning of section 174. Under Town and Country Planning Act 1990, section 174(1), “an interest in land” means a legal or equitable interest. It does not include a person with no proprietary interest but some other link with the land.
2. A “relevant occupier” under section 174(6) is a person who occupies the land by virtue of a licence when the enforcement notice is issued and continues to occupy it by virtue of that licence when the appeal is brought. The licence may be contractual or bare, and may be express or implied. Whether an implied licence exists depends on all the circumstances, including the relationship between the parties and the circumstances of occupation.
3. The definition of “relevant occupier” is distinct from the meaning of “occupier” for service under section 172. Physical occupation, or physical occupation combined with service of the enforcement notice, does not itself confer a right of appeal.
4. The Secretary of State correctly concluded that Mrs Flynn had no legal or equitable interest and that there was no evidence of an express licence. The evidence did not establish that the land had been abandoned or that a later permission from another landowner operated retrospectively.
5. The Secretary of State nevertheless erred by failing to consider an implied licence. Mrs Flynn had occupied the land for about eight months without evidence of objection, and the correspondence indicated that landowners had not asked the occupiers to leave and were content with their presence. Those matters raised the possibility that any initial trespass had been followed by acquiescence and an implied licence.
6. Mrs Flynn was the only person who had lodged an appeal. The position of Mrs Sheridan and other unnamed occupiers therefore did not arise. There is no absolute right to an oral hearing on whether a person has a right of appeal; procedural fairness determines the appropriate procedure.
7. The Article 8 issue was left unresolved. It was unnecessary to decide whether judicial review remained available despite section 285 or whether section 174 could be read compatibly with Article 8 under section 3 of the Human Rights Act 1998. Permission was granted, the decision of 3 September 2012 was quashed, and the matter was remitted for reconsideration of whether Mrs Flynn had an implied licence at the relevant times.

First-instance judicial review in the High Court (Administrative Court). The Secretary of State’s decision dated 3 September 2012 was quashed and remitted for reconsideration.