Bowring v The Secretary of State for Communities and Local Government

On a remitted planning enforcement appeal, an inspector may reconsider an issue that was not finally determined where it remains relevant to the statutory grounds and the latest evidence materially differs. The inspector must assess whether the previous use could lawfully be resumed, including under section 57(4) of the Town and Country Planning Act 1990, when deciding whether enforcement requirements are excessive. A different conclusion from an earlier inspector is permissible where the later inspector has fuller evidence; express acknowledgment of the disagreement is not essential if the reasoning is clear. An inspector may require removal of works integral to the unauthorised change of use, and the restriction on new evidence in a section 289 appeal prevents parties from introducing fresh factual material except in limited circumstances.

The appellants challenged an enforcement notice concerning the conversion of a single dwelling house into three self-contained flats. The first inspector varied the notice but required removal of certain kitchen fittings. On the first section 289 appeal, the High Court remitted the matter for determination of whether the fittings were installed for a different lawful house-in-multiple-occupation use or formed part of the conversion to flats: [2013] EWHC 1115 (Admin).

On remittal, the second inspector reconsidered the appeal grounds and concluded that the earlier house-in-multiple-occupation use had not been lawful. The central issues were whether he was entitled to revisit that question, whether his conclusion was legally irrational or inadequately reasoned, and whether the requirement to remove first-floor kitchen fittings was excessive.

1. Appeal dismissed. The second inspector was entitled to reconsider the lawfulness of the earlier house-in-multiple-occupation use. The remittal superseded the first decision, and the issue was relevant to both the planning merits and the question whether the enforcement steps were excessive.
2. Under section 57(4) of the Town and Country Planning Act 1990, the inspector had to consider whether the property could lawfully have been used for the earlier purpose if the unauthorised development had not occurred. The second inspector was therefore entitled to consider whether the residents had been living together as a single household under the applicable Use Classes Order.
3. The conclusion that the HMO use was unlawful was not Wednesbury unreasonable. The evidence described separate bedsits, separate lockable doors and separate households. The second inspector was not bound to reach the first inspector’s apparent view, particularly when he had fuller evidence. He was not required expressly to state that he disagreed with the first decision letter.
4. The first-floor kitchen fittings had probably been installed as part of the conversion to flats. Since the earlier HMO use was unlawful, there was no lawful use to which the fittings could be retained under section 57(4). Their removal was an integral and proportionate requirement for securing cessation of the breach.
5. In section 289 proceedings, further evidence cannot generally be introduced. The appellants’ later witness statement contained new factual material and could not be relied upon, applying the approach in Clarke v the Secretary of State for the Environment [1992] 3 PLR 146.
6. There was no need to consider a possible future Class C3(c) use. The appellants had not advanced that use at the inquiry, and their preferred alternative use as two flats would itself require planning permission.
7. Costs were awarded to the Secretary of State in the reduced sum of £14,656.34.

1. High Court (Administrative Court): On the first section 289 appeal, the court allowed the appeal on an alternative ground and remitted the matter to an inspector to determine whether the additional kitchens were installed for a different lawful use or as part of the conversion to flats: [2013] EWHC 1115 (Admin).
2. High Court (Administrative Court): The present second appeal was dismissed. The second inspector’s decision was upheld and costs were ordered against the appellants.