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

In a planning appeal, procedural fairness requires an inspector to alert the parties before relying materially on an issue which they reasonably understood was outside the scope of the appeal. A statement of common ground may define matters that ordinarily need not be investigated, subject to the inspector’s duty to give notice if a different approach is proposed.

Where an inspector decides whether intensification amounts to a material change of use, relevant planning consequences may include effects on and off the site. If undisclosed off-site effects materially influence that conclusion, the decision cannot stand. An enforcement notice may be based on a certificate of lawful existing use where the intensified use actually undertaken has been found to constitute an unlawful material change.

The appellant challenged, under section 289 of the Town and Country Planning Act 1990, a planning inspector’s decision dismissing his appeal against an enforcement notice concerning vehicle, container and other storage at a Green Belt site.

The inspector found that intensification had materially changed the definable character of the site’s use and dismissed grounds (b) and (c). He also rejected the claim under ground (d) that the relevant use had continued for ten years. The appellant argued that the inspector had unfairly relied on off-site effects, reached conclusions unsupported by the evidence, failed to consider issuing a certificate under section 177(1)(c), and impermissibly restricted an existing lawful use.

1. Grounds (b) and (c) allowed in part. The inspector’s conclusion that intensification amounted to a material change of use could not stand. The issue was whether the identified change was material in planning terms. The decision letter expressly relied on off-site impacts and materially different planning consequences both on and off the site.
2. The parties had reasonably understood, from the local planning authority’s position and the statement of common ground, that off-site effects were not in issue. The inspector was not bound by that position, but, if the issue appeared important, fairness required him to draw it to the parties’ attention. Reliance on it without notice was procedurally unfair and materially prejudicial. Rule 16 of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 reinforced that conclusion.
3. The challenge to the inspector’s ground (d) conclusion failed. The evidence did not establish that the relevant existing use had commenced at least ten years before the enforcement notice. Evidence of a pause in 2003, together with insufficient evidence of continuous use before the relevant date, supported the inspector’s conclusion.
4. The inspector was not required to issue a certificate under section 177(1)(c) of the Town and Country Planning Act 1990. The word “may” conferred a discretion, and the power applied only where an existing use was lawful. The inspector had found that the existing use in issue was unlawful.
5. The argument based on Mansi v Elstree RDC was rejected in its extended form. A certificate specifies the lawful use subject to the general law on intensification. An enforcement notice may be based on that certificate where the particular intensification relied on has been found to be an unlawful material change of use. The matter was remitted for redetermination of the intensification issue; the ground (d) determination stood. The appropriate order was to be settled after submissions.

The judgment was a section 289 appeal from a planning inspector’s decision dated 10 October 2014. The inspector had dismissed the appellant’s appeal against an enforcement notice, rejecting grounds (b), (c) and (d). The High Court set aside the determination under grounds (b) and (c), upheld the ground (d) determination, and directed that the intensification issue be redetermined.