Basharat Hussain Khan & Anor v The Secretary of State for Housing, Communities and Local Government & Anor

An application for permission to appeal under section 289 of the Town and Country Planning Act 1990 must comply with the applicable time limit and procedural requirements. Serious delay without a good explanation will not ordinarily justify an extension of time. An appeal concerning an enforcement notice is confined to a point of law. An Inspector may assess the weight and reliability of evidence, including an unchallenged statutory declaration, where the parties had a fair opportunity to respond. Complaints about evidential weight, factual assessment or the absence of cross-examination do not establish an error of law where the written representations procedure was chosen.

The applicants sought permission to appeal under section 289 of the Town and Country Planning Act 1990 against an Inspector’s dismissal of their appeal against an enforcement notice concerning an extension and outbuilding. Their underlying case was that enforcement action was time-barred because the development had been substantially completed more than four years before the notice.

The application was lodged outside the 28-day period and did not comply with procedural requirements concerning service and supporting evidence. The applicants alleged failures to consider relevant matters, reliance on allegedly biased evidence, procedural unfairness through the absence of cross-examination, and inadequate reasons.

1. Extension of time. The application was seriously and significantly out of time. The explanations relied upon did not amount to a valid excuse. Applying the Denton principles, and alternatively CPR 7.6(2) by analogy, there was no sufficient basis to extend time. The procedural defects provided an additional reason why the application could not succeed.
2. Permission test. Although permission was refused on the time issue, the court considered the substantive grounds for completeness. Under CPR r. 52.6, the applicants had to show a realistic prospect of success or another compelling reason. They did neither.
3. Planning evidence and fairness. The burden was on the applicants to establish, on the balance of probabilities, that the breach had become lawful under section 174(2)(d) and section 171B(1)(a) of the Town and Country Planning Act 1990. Parties to a planning appeal must put forward the material on which they rely. In a written representations appeal, the Inspector may decide the case on that material, while subjecting it to rigorous examination.
4. The Inspector was entitled to consider the neighbour’s statutory declaration and the Council’s records. The weight given to that evidence was a matter of planning judgment and did not disclose an error of law. There was no evidence of actual bias, and the applicants had an opportunity to respond but chose not to do so. Having selected written representations, they could not subsequently insist that cross-examination or an oral hearing was required.
5. The development plan was irrelevant to the single factual issue, no material consideration was improperly omitted or included, and the Inspector’s reasons were clear and comprehensive. Permission to appeal was refused. The applicants were ordered to pay the First Respondent’s costs, summarily assessed at £5,281.70.

The judgment concerns an application for permission to appeal against an Inspector’s decision dated 31 October 2024, which dismissed the applicants’ enforcement notice appeal. No earlier appellate decision in the same proceedings is stated.