Akhtar v Secretary of State for Communities & Local Government & Anor

In a written-representations planning appeal, the Secretary of State may disregard material submitted after the statutory timetable, subject to a discretion to admit it where fairness or a material change of circumstances requires. Lay status or alleged confusion will not ordinarily justify a delay where the timetable was communicated clearly and extensions could have been requested. An inspector may determine an appeal on the material properly submitted, but must examine that material rigorously and take further steps only in exceptional cases. On a ground (d) enforcement appeal, the appellant bears the burden of proving immunity on the balance of probabilities. A prior defective enforcement notice may nevertheless constitute purported enforcement action capable of supporting further enforcement action under the Town and Country Planning Act 1990.

The appellant challenged an Inspector’s dismissal of his ground (d) appeal against an enforcement notice concerning the use of an outbuilding as separate residential accommodation. The appeal was brought under section 289 of the Town and Country Planning Act 1990.

The appellant had submitted further representations approximately two months outside the timetable prescribed for written-representations appeals. The Inspector declined to consider them and concluded, on the evidence before him, that the alleged residential use had not acquired immunity. The central issues were whether the late material should have been admitted, whether an earlier defective enforcement notice affected the later notice, and whether the Inspector had erred in law.

1. Late representations. The appeal was dismissed. Regulations 7(7) and 7(8) of the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 establish a clear timetable and permit the Secretary of State to disregard further information submitted outside it. Effective and fair administration requires parties to comply with that timetable, and delay prejudices the administration of the appeal system.
2. Late material may require consideration where fairness demands it, including where there has been a material change of circumstances or the material did not exist before the deadline. The material submitted in November 2015 could have been produced earlier. The appellant had been given clear information about the timetable and had previously requested extensions. His alleged confusion and unrepresented status did not justify admission.
3. The general rule is that parties must place before the inspector the material on which they rely. The inspector may decide the appeal on that material, subject to an inquisitorial obligation to examine it rigorously. Exceptional circumstances may require a request for further information or a departure from the written procedure, but none existed here. The principles stated in West v First Secretary of State [2005] EWHC 729 were followed.
4. The appellant bears the burden of proving, on the balance of probabilities, that the relevant period of immunity has accrued: Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 40. The Inspector was entitled to find that the evidence did not establish that the outbuilding had viable living facilities by the critical date.
5. The earlier enforcement notice’s omission of its effective date did not prevent reliance on section 171B(4)(b) of the Town and Country Planning Act 1990. That provision permits further enforcement action where the authority has taken, or purported to take, enforcement action within the relevant period. The later notice could therefore rely on the date of the earlier notice for calculating the four-year period.
6. Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 597 was distinguishable because it concerned material that did not exist before the deadline. The High Court was concerned with legal error, not a rehearing of the merits, and the additional evidence produced for the court could not alter the result.

The appeal was dismissed.

• High Court (Administrative Court): Appeal under section 289 of the Town and Country Planning Act 1990 dismissed.
• Planning Inspectorate: Inspector Thomas Shields dismissed the appellant’s appeal against the enforcement notice on 15 February 2016 and amended the notice under section 176(1)(a) of the Town and Country Planning Act 1990.