Benson v The Secretary of State for Communities & Local Government & Anor

An appeal under section 289 of the Town and Country Planning Act 1990 is confined to legal error. The court must not reconsider the planning merits or determine what decision the Inspector should have reached on the evidence.

Where immunity from enforcement depends on four years’ continuous unlawful use, the appellant must establish continuity throughout the relevant period. A material change back to use with the principal dwelling breaks the period, so time begins again when separate use resumes.

An Inspector may regulate late evidence in accordance with procedural fairness. A document used to refresh a witness’s memory is not necessarily evidence formally tendered. Cross-examination of an Inspector remains exceptional and must be directed to a pleaded issue capable of establishing legal error.

The appellant challenged an Inspector’s dismissal of her appeal against an enforcement notice concerning the use of an annex as a separate dwelling. The Inspector had found that continuous four-year use before the notice had not been proved and awarded costs.

The challenge alleged that the Inspector had mishandled late bank statements and a tenant’s letter, and had failed to give adequate reasons for refusing their admission. Following an interlocutory order permitting cross-examination, the High Court considered what occurred at the inquiry and the proper limits of the statutory appeal.

The central issues were whether a formal application to admit the extra material had been made, whether the Inspector’s treatment of it involved legal error, and whether any such error could affect the unchallenged finding that the enforcement period had not run continuously.

1. The appeal was dismissed. The Inspector’s conclusion that immunity had not been established was sufficient to dispose of the challenge.
2. Under section 289 of the Town and Country Planning Act 1990, the court could intervene for legal error, including absence of evidence, failure to consider a relevant matter, or an irrational conclusion. It could not re-weigh the evidence or form its own view of the planning merits. The interlocutory order could not enlarge that jurisdiction.
3. The burden lay on the appellant to prove that the unlawful separate use had continued throughout the relevant four-year period. Consistently with Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions and Fairstate Ltd v First Secretary of State and Westminster City Council, a material change back to occupation with the principal dwelling interrupted the period. Any renewed separate use started a new period.
4. The Inspector’s findings about breaks in the use were supported by the evidence and were not challenged. The extra material could not affect that determinative reasoning.
5. On the facts, the appellant had used the documents during her evidence to refresh her memory. No properly supported formal application to admit the further documents had been established. Even if an offer to make them available amounted to an application, it lacked an adequate explanation for the late production and would have required procedural disruption and further opportunity for the authority to respond.
6. The Inspector knew the substance of the material and adequately dealt with it. Cross-examination was unnecessary. The questions for the court concerned what occurred at the inquiry and whether the Inspector had made legal error, not the potential merits of the late evidence.

The Inspector’s decision and costs decision therefore stood.

The judgment records an appeal under section 289 of the Town and Country Planning Act 1990 from a planning Inspector’s decision dated 29 August 2017. That decision had dismissed the appellant’s section 174 appeal against an enforcement notice issued by Hertsmere Borough Council.