Keenan v Woking Borough Council & Anor

On an enforcement appeal, the scope of a ground (f) challenge depends on the statutory purpose of the steps in the enforcement notice. An inspector must first identify whether the steps remedy the breach, injury to amenity, or both. A ground (f) challenge cannot be pursued on the injury-to-amenity limb where that was not a purpose of the steps. The concept of an “obvious alternative” does not create a free-standing test overriding the statutory limits on the grant or deeming of planning permission. A material mistake of fact amounts to an error of law only where it concerns an objectively verifiable fact, was not caused by the claimant, and materially affected the public body's reasoning. Under Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, the development must first fall within the relevant class and satisfy its substantive requirements; expiry of the prior-approval period cannot cure that defect.

The appellant challenged, under section 289 of the Town and Country Planning Act 1990, an inspector’s decision dismissing appeals against two enforcement notices issued by Woking Borough Council. One notice alleged an unauthorised mixed agricultural and residential use and required cessation of the use and removal of associated items. The other alleged the construction of an unauthorised track.

Permission to appeal was granted on three grounds: whether the inspector had properly considered the ground (f) appeal; whether an incorrect date concerning Mrs Keenan’s residence in Italy caused unfairness; and whether failure to respond within 28 days to a prior-approval application resulted in deemed permission for the track.

1. Ground (f). The inspector was required to identify the statutory purpose of the steps specified in the enforcement notice under sections 173(3) and (4) of the Town and Country Planning Act 1990. Where the purpose was remedying the breach of planning control, rather than injury to amenity, the appeal could not be considered on the latter basis. That conclusion was consistent with Secretary of State for the Environment, Transport and the Regions v Wyatt Brothers (Oxford) Ltd and Miaris v Secretary of State for Communities and Local Government.
2. The references in Tapecrown Ltd v First Secretary of State, Ahmed v Secretary of State for Communities and Local Government and Moore v Secretary of State for Communities and Local Government to an “obvious alternative” had to be read in context. Secretary of State for Communities and Local Government v Ioannou rejected a free-standing obvious-alternative test. An inspector may consider an obvious alternative within the statutory powers, but is not required to devise an appellant’s case. Here, the appellant had not advanced an alternative scheme beyond the proposed mixed use, and the inspector had properly considered whether the enforcement steps were excessive.
3. Ground (d). The incorrect reference to 1999 rather than 2010 was a mistake concerning an uncontentious and objectively verifiable fact. It was not caused by the appellant. However, it was immaterial. The inspector’s notes, the documentary evidence and other passages in the decision showed that she had understood the evidence correctly. The mistake therefore caused no unfairness within the principles in E v Secretary of State for the Home Department, as applied in planning cases by Connolly v Havering LBC.
4. Ground (c). Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 imposed a sequential scheme. The land had to be agricultural land used for an agricultural trade or business, the unit had to meet the size requirement, and the development had to be reasonably necessary for agriculture. Only then did the prior-approval provisions arise. The local authority’s failure to respond within 28 days could not bypass those substantive requirements. The inspector had therefore applied the correct approach.
5. The appeals were dismissed.

The judgment was a statutory appeal under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision dated 22 June 2015 dismissing appeals against two enforcement notices. Permission to appeal was granted on three grounds by Singh J. The High Court dismissed the appeals.