Pitt v Secretary of State for the Home Department

On an application for permission to appeal a planning inspector’s decision, permission should be granted where it is arguable that the inspector adopted a materially different view from the parties without giving them an opportunity to address it. A decision letter must explain the principal controversial issues sufficiently to show how they were resolved, but reasons need not address every material consideration. An inspector may correct an enforcement notice on the written evidence where the parties had an opportunity to address the proposed correction and identify no prejudice. Planning judgments about the weight of a fall-back position will not be reopened where the inspector has not rejected the position but has assessed its evidential weight.

The claimant sought permission to appeal under section 289 of the Town and Country Planning Act 1990 against a planning inspector’s decision on an appeal under section 174 concerning an enforcement notice issued by Epping Forest District Council. The inspector corrected the description of the breach by deleting words referring to use as a residential annex and dismissed the statutory appeals.

Seven grounds were advanced, including alleged failures to give adequate reasons, breaches of natural justice, unlawful variation of the enforcement notice, errors concerning a lawful fall-back position, and failure to consider personal circumstances. The central issue was whether any ground was arguable as an error of law warranting permission to appeal.

1. Reasons. The court applied the principles stated in South Bucks District Council & Or v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953. Reasons must be intelligible and adequate, disclose how the principal important controversial issues were resolved, and enable the reader to understand the decision. They need address the main issues, not every material consideration, and a challenge requires substantial prejudice.
2. The inspector’s treatment of Green Belt policy gave rise to no arguable error. Although paragraph 14 of the decision letter did not expressly explain why the relevant exception did not apply, the decision read as a whole, together with the plans and site inspection, made it sufficiently clear that the extension was regarded as a significant addition affecting Green Belt openness. Permission was refused on that ground.
3. It was arguable that the inspector had departed from the parties’ apparent common position that the residential use was ancillary to the main dwelling, without giving them a further opportunity to address the issue. Permission was therefore granted on that narrow procedural ground.
4. The inspector had not rejected the claimed lawful fall-back position concerning further garage development. He had assessed its weakness and the weight it should receive. That was a planning judgment open to him. The alleged challenge concerning curtilage and mixed use was therefore not arguable.
5. Under section 176 of the Town and Country Planning Act 1990, the inspector could correct or vary the enforcement notice if satisfied that no injustice would result. The written representations showed that the proposed deletion had been raised and answered, and no prejudice had been identified. No arguable error arose.
6. The arguments concerning the claimant’s personal circumstances and human rights did not disclose an arguable failure to consider a relevant special circumstance. Permission was refused on those grounds. Six of the seven grounds were dismissed, the remaining ground was permitted to proceed, directions were given for amended grounds and the costs question was reserved.

• Planning inspector: On 7 November 2014, the inspector corrected the enforcement notice and dismissed the appeals under section 174 of the Town and Country Planning Act 1990.
• High Court (Administrative Court): Permission to appeal was granted on one narrow procedural ground and refused on the other six grounds.