Norman Powell v Secretary of State for Housing, Communities and Local Government & Anor

In a statutory planning challenge, an interested party to an enforcement appeal has no standing in the High Court unless that person has the requisite interest in the land or has been served in accordance with the applicable procedure.

A written-representations procedure does not remove the decision-maker’s duty to afford a fair opportunity to address determinative issues. That duty is satisfied where the parties knew the issues in dispute and the Inspector had sufficient information to decide them. A previous planning decision need not be considered where the factual circumstances are materially different. Ancillary residential accommodation may have a recreational element capable of causing indirect effects on ancient woodland.

The Applicant sought permission under section 289 of the Town and Country Planning Act 1990 to appeal against an Inspector’s remitted decision dismissing his appeal against an enforcement notice concerning a building in or near designated ancient woodland and the Green Belt.

The first enforcement appeal had succeeded on ground (a), but the decision was quashed and remitted following judicial review proceedings. On redetermination, the Inspector dismissed the appeal because of the potential direct and indirect effects on ancient woodland, including inadequate buffer protection.

The Applicant alleged failure to inquire, failure to canvass determinative issues, inconsistency with another planning decision, misinterpretation of national guidance, objective factual error and inadequate reasons. A preliminary issue also arose concerning the standing of an adjoining landowner.

1. Preliminary issue. Under CPR PD 54D, the respondents to an application under section 289 include the Secretary of State, the local planning authority and persons having an interest in the land to which the enforcement notice relates. An interested party to the underlying enforcement appeal who has no interest in the land is not an Interested Party in the statutory challenge and has no entitlement to appear or be heard. The adjoining landowner’s documents were therefore disregarded.
2. Fair hearing and inquiry. The written-representations procedure does not absolve an Inspector from ensuring a fair opportunity to address determinative issues. However, an Inspector need not revert to the parties where the disputed matters were foreseeable, had been addressed in the material before the Inspector, and there was sufficient information to reach a lawful judgment. The parties knew that ancient woodland effects and buffer adequacy were material issues. The Inspector was entitled to assess indirect effects from the proposed ancillary accommodation without further representations.
3. Consistency. Consistency in planning decisions may require regard to a previous decision in appropriate circumstances. The Barff Lane decision concerned a materially different factual situation, involving a larger residential development, public access and increased visitor numbers. The Secretary of State was not irrational in failing to consider it, particularly as it had not been drawn to the Inspector’s attention.
4. Guidance and factual error. The Inspector did not equate the building with a dedicated recreational use. Read in context, the decision recognised that ancillary living accommodation had a recreational element and could create indirect effects. A later plan not before the Inspector did not establish an incontrovertible factual error, and any alleged mistake was not shown to have played a conclusive part in the reasoning.
5. Reasons and outcome. The Inspector gave adequate reasons for proceeding on the information available and for concluding that the fallback position would have a lesser effect on ancient woodland. None of the grounds was arguable and there was no realistic prospect of a successful appeal. Permission to appeal was refused.

The judgment describes a previous enforcement appeal and subsequent judicial review proceedings in which the first decision was remitted to the Planning Inspectorate. The present court refused permission to appeal against the Inspector’s remitted decision.