Keenan, R (on the application of) v Secretary of State for Communities And Local Government

Permission to appeal under section 289 of the Town and Country Planning Act 1990 should be granted where the proposed grounds disclose arguable points of law requiring substantive consideration. A disagreement with an inspector’s factual findings or planning judgment is not, without more, an arguable legal error. The court may also permit a ground based on an alleged error of fact where its material effect on the outcome requires further examination. Permission may be limited to the grounds that meet this threshold.

The claimant sought permission under section 289 of the Town and Country Planning Act 1990 to appeal against the Secretary of State’s dismissal of two appeals concerning enforcement notices. The appeals were addressed in a single inspector’s decision letter.

At the permission hearing, the claimant relied principally on three proposed grounds: the approach to ground (f) under section 174(2), the interpretation of the General Permitted Development Order 1995 in relation to deemed planning permission after 28 days, and an alleged material error concerning the date on which the claimant’s wife returned to the United Kingdom.

1. Permission granted in part. Permission to appeal was granted only on the three grounds identified in the judgment. Costs were reserved.
2. The original complaints concerning procedural fairness, human rights, and the inspector’s assessment of whether the claimant was carrying on a trade or business did not disclose arguable legal errors. They amounted either to disagreement with findings of fact and planning judgment or lacked a proper basis.
3. The proposed challenge to the inspector’s approach to ground (f) under section 174(2) raised an arguable point of law. Its possible relationship with Miaris v Secretary of State for Communities and Local Government [2015] EWHC 1564 (Admin) and Tapecrown Ltd v First Secretary of State [2007] 2 P & CR 7 required consideration at a substantive hearing.
4. The challenge concerning Notice B and the deemed grant of planning permission under the General Permitted Development Order 1995 also raised an arguable legal issue. The scope of the 28-day deeming provision, and its relationship with Harrogate Borough Council v Foster [2012] EWHC 3260 (QB) and Clarke v Secretary of State for the Environment [1993] 65 P & CR 85, required fuller examination.
5. An alleged error of fact concerning the date of the claimant’s wife’s return to the United Kingdom was arguable because the erroneous date appeared repeatedly in the decision letter. Whether the error materially affected the outcome had to be determined at the substantive hearing.

This was a permission decision at first instance. The judgment records that the Secretary of State’s inspector had dismissed two appeals concerning enforcement notices. Permission to bring the statutory appeal was granted on three grounds only, with costs reserved.