Lionel Waterhouse & Anor v Secretary of State for Housing, Communities and Local Government & Anor

For leave to appeal on a point of law under section 289 of the Town and Country Planning Act 1990, the proposed ground must be arguable and have a real prospect of success. An inspector may determine a planning appeal on written representations where the parties had a fair opportunity to provide evidence. The burden of proving a period of immunity from enforcement lies on the appellant. The absence of documentary or photographic corroboration may legitimately affect whether an assertion is accepted; it is not speculation. Reasons are adequate where, read fairly and without excessive legalism, they leave no genuine doubt about what was decided and why. Delay may justify an extension in the interests of justice, but arguability remains an independent requirement.

The claim concerned two appeals against enforcement notices relating to the use of a forestry container as a dwelling. The appellants relied on ground (d), contending that residential use had continued for at least four years before the notices and was therefore immune from enforcement under the Town and Country Planning Act 1990.

The planning inspector dismissed the appeals, finding insufficient precise and unambiguous evidence of continuous residential use. The appellants sought leave to appeal under section 289, alleging procedural unfairness, errors of law, unreasonableness and inadequate reasons. The proposed appeal was filed 18 days late, and an extension of time was also sought.

1. Arguability. The application for leave was refused. None of the proposed grounds had a real prospect of success for the purposes of CPR 52.6(1)(a).
2. Evidence and written procedure. The appellants bore the burden of proving, on the balance of probabilities, a continuous lawful period of immunity. They had a full opportunity to provide evidence and had agreed to written representations. The inspector was entitled to decide the case on the material submitted. The absence of dated photographs or other documentary evidence supporting the claimed residential use was a legitimate evidential consideration, not speculation or reliance on evidence that was absent.
3. Alleged legal errors. The inspector had not raised the standard of proof by requiring precise and unambiguous evidence. The decision showed that any four-year period before the enforcement notices could suffice, and that continuity was understood as a subsisting breach rather than an additional legal requirement. The inspector did not treat the absence of documents as independent evidence; he identified the conspicuous absence of corroboration and was entitled to conclude that the claim had not been proved.
4. Fairness, unreasonableness and reasons. There was no exceptional unfairness requiring an oral hearing or further enquiry. The appellants could not demonstrate real unfairness causing substantial prejudice. The inspector’s conclusion was rational and his reasons, read in a straightforward manner, grappled with the material evidence and left no genuine doubt as to what he decided and why.
5. Delay. The Denton principles applied. Although the court would have extended time had a viable ground existed, the appeal was not arguable and the appellants had materially misunderstood the deadline. The extension was therefore refused.
6. Costs. The request to reduce the two individual Aarhus default caps to an aggregate £5,000 was refused. Costs were summarily assessed at £7,500 for the Secretary of State and £2,500 for the local planning authority.

• Planning inspector. The inspector dismissed the appellants’ ground (d) appeals against enforcement notices concerning residential use of a forestry container.
• High Court (Planning Court). The application for leave to appeal under section 289 of the Town and Country Planning Act 1990 was refused. The application for an extension of time was also refused.