LONDON BOROUGH OF BRENT v SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT

For a certificate of lawful use or development, the decision-maker must consider both requirements in section 191(2) of the Town and Country Planning Act 1990. The use must attract no available enforcement action and must not contravene an enforcement notice then in force. Those questions are assessed at the date of the certificate application, including any applicable extension of enforcement time under section 171B(4). The decision-maker must address these issues even if the parties have not raised them. A previous planning decision may require consideration where the cases are materially indistinguishable, but no consistency obligation arises where the decisions concern different material periods. Procedural fairness requires a party to have a reasonable opportunity to submit evidence and representations. A fundamental failure to determine whether the proposed use is lawful justifies quashing the decision.

The Council applied under section 288 of the Town and Country Planning Act 1990 to quash a decision allowing an appeal under section 195 and granting a certificate of lawful existing use or development for the change of a dwellinghouse into two flats.

The certificate inspector considered the effect of an enforcement notice and concluded that it was of no effect because related enforcement proceedings had been remitted. The Council challenged the decision on consistency, procedural fairness and jurisdictional grounds. The Secretary of State conceded the jurisdictional ground. The central issues were whether the inspector had to consider the availability of further enforcement action and whether the Council had received a fair opportunity to present its case.

1. Ground 3 allowed. A use is lawful under section 191(2) of the Town and Country Planning Act 1990 only if both limbs are satisfied: no enforcement action may be taken, and the use does not contravene an enforcement notice then in force. The inspector considered only the second limb.
2. The relevant date was the date of the certificate application, 7 or 8 November 2019. Because the Council had purported to take enforcement action by issuing the enforcement notice on 24 July 2017, section 171B(4)(b) permitted further enforcement action while the applicable four-year period remained current. The proposed use therefore did not satisfy section 191(2)(a). The inspector acted outside the statutory powers by certifying it as lawful. The issue had to be considered whether or not the parties raised it.
3. Ground 1 dismissed. Under North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P & CR 137, consistency may require regard to a previous appeal decision and reasons for departure where the cases are materially indistinguishable. The earlier decision concerned the four-year period ending on 24 July 2017, whereas the certificate appeal concerned the period ending on 7 or 8 November 2019. The decisions were distinguishable, so there was no departure requiring explanation.
4. Ground 2 allowed. PINS failed to send the Council’s requested enforcement-appeal representations to the certificate inspector and failed to tell the Council that this had not occurred. That procedural failure deprived the Council of a reasonable opportunity to submit its evidence and arguments, contrary to the principles stated in Hopkins Developments v Secretary of State for Communities and Local Government [2014] EWCA Civ 470.
5. The court declined to exercise its discretion against quashing. The failure to consider section 191(2)(a) was fundamental and went to the central question whether the use was lawful. The claim was allowed and the section 195(2) decision was quashed.

The proceedings were brought at first instance under section 288 of the Town and Country Planning Act 1990. A related enforcement-notice appeal had previously been remitted to the Secretary of State by a Deputy High Court Judge in [2020] EWHC 649 (Admin). The present claim challenged the later certificate decision and was allowed.