Ate Farms Limited v The Secretary of State for Housing Communities and Local Government & Anor

On an appeal under section 289 of the Town and Country Planning Act 1990, the court may intervene in an inspector’s procedural decision only where it is wrong in principle or demonstrably and clearly unfair.

An inspector must identify the true factual issues raised by the parties’ cases. Where an appeal under ground (a) depends on whether a building’s destruction was accidental or caused by human agency, and whether the appellant was responsible, those matters may be material to the proportionality of retrospective planning permission. The inspector cannot assume that the appeal may be determined without addressing them where the evidence and parties’ cases make that unrealistic. The matter may be remitted for procedural reconsideration.

The appellant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision to proceed with an inquiry into an enforcement notice concerning the demolition of the Crooked House public house.

The appellant argued that the inquiry should be postponed pending a police investigation into the fire which had substantially destroyed the building. It contended that the cause of the fire, the identity of those responsible, and the appellant’s possible innocence were material to the ground (a) appeal and to the proportionality of requiring reinstatement. The inspector proposed a hybrid procedure, hearing grounds (a) and (g) while treating other grounds by written submissions. The central issue was whether that procedure could fairly proceed without determining the cause of the fire.

1. Appeal allowed and remitted. Permission to appeal was granted on all grounds, but the appeal was determined on ground 1. The matter was remitted to the inspector to reconsider whether to begin the inquiry on 11 March 2025 and, if so, on what basis.
2. For a procedural appeal concerning an enforcement inquiry, the applicable test is whether the inspector’s decision was wrong in principle or demonstrably and clearly unfair, as stated in Croydon London Borough Council v Secretary of State for the Environment, Transport and the Regions [2000] PLCR 171 at 176C.
3. The inspector’s hybrid approach rested on a real possibility that the ground (a) appeal could be determined without evidence about, or findings concerning, the cause of the fire. That premise was unsustainable on the cases advanced by the parties.
4. The appellant’s case made responsibility for the fire central to the ground (a) appeal. The inspector would need to determine what evidence should be admitted, make findings about whether the fire was accidental or caused by human agency and whether the appellant or its agents were responsible, and then evaluate the planning balance, including the alleged interference with the appellant’s rights under Article 1 of Protocol 1 to the European Convention on Human Rights.
5. The procedure could not realistically avoid delay or prejudice. It was therefore necessary for the inspector to reconsider the timing and conduct of the inquiry. The court did not direct the inspector how to exercise his procedural powers under the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) Rules 2002.

• High Court (Planning Court) — The appeal under section 289 of the Town and Country Planning Act 1990 was allowed. The inspector’s procedural decision was remitted for redetermination.
• Inspector — On 17 January 2025, the appointed inspector directed that the enforcement inquiry should proceed on 11 March 2025 using a hybrid procedure.