London Borough of Brent v The Secretary of State for Housing, Communities and Local Government

On a ground (d) appeal against an enforcement notice, the inspector must determine whether the matters alleged in the notice constituted a material change of use which had continued throughout the relevant ten-year period. The inspector must consider a materially advanced argument that a later intensification itself amounted to a further material change of use, because that could prevent the use existing at the notice date from having acquired immunity. There is no general statutory duty to investigate every possible different breach of planning control or to consider intensification in every case. Reasons must address principal important controversial issues and enable the reader to understand the decision when read as a whole.

The local planning authority appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision allowing an enforcement appeal by a primary school. The enforcement notice alleged an unauthorised mixed use including non-ancillary public parking. The inspector found that the use began on 24 March 2007 and continued for ten years, so the ground (d) appeal succeeded and the notice was quashed.

The authority argued that, alternatively, the use had intensified in 2016 so as to constitute a further material change of use. The central issue was whether the inspector was required to consider and address that argument.

1. The appeal was allowed and the inspector’s decision was remitted to the Secretary of State for rehearing and determination.
2. On a ground (d) appeal under section 174(2)(d) of the Town and Country Planning Act 1990, the inspector must consider whether the appellant has shown that the unlawful activity described in the enforcement notice continued throughout the relevant ten-year period, and whether enforcement action could have been taken throughout that period. The inquiry concerns the matters stated in the notice under section 173(1)(a), not an unrestricted investigation of other breaches.
3. A material change of use may result from intensification. If the use existing when the notice was issued had materially intensified within the ten-year period, the later use would not have subsisted for ten years and would not have been immune under section 171B(3).
4. There is no general statutory obligation to consider whether every use has intensified into a further material change of use. Such an issue must be considered where it is alleged in the notice or is properly raised as a materially relevant issue.
5. The authority’s closing submission clearly relied on a 2016 material change of use by intensification. That submission could have defeated the ground (d) appeal. The inspector’s failure to have regard to it and address it in her decision letter was therefore an error of law. The reasoning requirements identified in Bloor Homes Ltd v Secretary of State for Communities and Local Government applied. The fairness objection did not justify upholding the decision, since the inquiry procedure enabled clarification and a response.

• High Court (Administrative Court): The section 289 appeal against the inspector’s decision dated 28 November 2018 was allowed. The matter was remitted to the Secretary of State for rehearing and determination.