Pitt, R (On the Application Of) v Epping Forest District Council

In a planning appeal conducted by written representations, fairness may require an inspector to invite further submissions where a new issue is material to the decision and has not fairly been raised with the parties. This applies particularly where the issue concerns the character of a proposed use and the availability of a permitted-development fall-back central to the planning balance.

Self-contained facilities do not necessarily establish a separate dwelling or planning unit. Ancillary residential use remains a question of fact and degree. A certificate for proposed development under section 192 of the Town & Country Planning Act 1990 is conclusive unless a material change occurs before the development begins. The decision was remitted for reconsideration.

The claimant appealed under section 289 of the Town & Country Planning Act 1990 against an inspector’s dismissal of an appeal concerning an enforcement notice. The notice required removal of an extension to a garage block at Hastingwood Farm, situated in the Green Belt.

The claimant contended that the extension formed part of the established residential use and could be used as ancillary accommodation. A lawful development certificate had also supported proposed ancillary residential accommodation in the existing garage block and a further garage building. The inspector treated the extension as an independent dwelling, gave little weight to the fall-back position, and rejected the requested longer compliance period. The central issue was whether the inspector had fairly addressed these matters and provided an opportunity for further representations.

1. Appeal allowed and matter remitted. The inspector’s decision was remitted to the Secretary of State for reconsideration in light of the court’s judgment. Costs were awarded against the first respondent, with only 75 per cent of the permission-hearing costs recoverable, subject to taxation if not agreed.
2. The parties had proceeded on the common ground that the extension was within the curtilage of the existing dwelling and formed part of the site’s residential use. The inspector nevertheless treated the expression ancillary dwelling as contradictory and inferred an independent dwelling from the self-contained facilities. That reasoning did not address the distinction between use, curtilage and planning unit, or the possibility that self-contained accommodation might remain ancillary as a matter of fact and degree.
3. The fall-back argument was material to the assessment of very special circumstances in the Green Belt. It depended on the proposed ancillary residential use of the existing garage block and the replacement of lost garaging and storage under Class E of Part I to Schedule 2 of the Town & Country Planning (General Permitted Development) Order 1995. The inspector did not squarely address that argument. His treatment of the section 192 certificate also confused a certificate for proposed development with a certificate for existing use or development under section 191.
4. Fairness in administrative decision-making applies to written-representation planning appeals. Where ancillary use, the operation of Class E and the fall-back position are material, and the inspector proposes to decide them on a basis not fairly raised with the parties, further representations should be invited. It could not be said that they would have made no difference or that the result was inevitable.
5. The same unfairness affected ground G because the inspector relied on his conclusion that the accommodation was not ancillary when deciding whether more time was required for compliance.

• Inspector: The enforcement appeal was dismissed by decision letter dated 7 November 2014.
• High Court (Administrative Court): The appeal under section 289 of the Town & Country Planning Act 1990 was allowed and the decision remitted to the Secretary of State for reconsideration.