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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Keenan, R (on the application of) v Secretary of State for Communities And Local Government [2015] EWHC 3402 (Admin) (11 August 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3402.html Cite as: [2015] EWHC 3402 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		11 August 2015

1. MR JUSTICE SINGH: This is an application under Section 289 of the Town & country Planning Act 1990 to appeal against a decision by the Secretary of State dismissing two appeals in respect of enforcement notices. There were two notices and therefore two appeals. Accordingly, the case has come before this court also by way of two appellant's notices but in substance they deal with the same matter. The Secretary of State's inspector dealt with both the appeals before her in a single decision letter.
2. Various grounds of appeal were advanced before this court in the original appellant's notices when, as I understand it, the applicant was acting in person, certainly before counsel was instructed. I have been considerably assisted by the way in which counsel's submissions, particularly at this hearing have focussed upon the essence of the matter. It is fair to say that Mr Wills has not abandoned the grounds which his client had adumbrated before the court but he has not sought to develop them save for one matter. What he has done is to focus on two grounds which he submits are arguable points of law. He has also developed one matter briefly which he says is an arguable error of established fact giving rise to a jurisdiction in this court to correct it as a matter of law.
3. I will return to those three grounds in due course.
4. So far as the original grounds save for that one are concerned, I am entirely persuaded by the written submissions which have been advanced on behalf of the Secretary of State in a very helpful skeleton argument which was filed before Mr Wills's skeleton argument. A number of arguments were advanced originally suggesting that there had been a lack of a fair hearing before the inspector, that there had been breaches of human rights and that there had been various errors of approach made in particular in relation to the conclusion which the inspector reached as to whether the appellant was carrying on trade or business. None of arguments in my judgment has any merit whatsoever. As the Secretary of State submits in writing, they either amount to a disagreement on matters of fact and planning judgment of the inspector or have no basis in any event.
5. It is important therefore to focus on what counsel quite properly have focussed on before me. Those, it does seem to me, raise arguable points which need to be considered at a substantive hearing by this court. In those circumstances it would not be appropriate for me to pronounce on their merits any further.
6. Those grounds, in essence, are first that the inspector may have erred as a matter of law in her approach to the appeal under ground (f) in Section 174 (2) of the Planning Act. I am told that although not directly in point there is another case which is pending before the Court of Appeal called Miaris v secretary of State for Communities and Local Government, the High Court reference being [2015] EWHC 1564 (Admin). It may be that the relationship between that decision and the decision of the Court of Appeal in Tapecrown Ltd v First Secretary of State [2007] 2 P & CR 7 will be the subject of discussion by the Court of Appeal in Miaris even if the judgment at first instance is upheld. In any event, in my view Mr Wills is right to submit that he has raised an arguable point of law and potentially one which could have wider implications going beyond the confines of this particular case.
7. The second point that Mr Wills has focussed on relates to the other appeal which concerned the notice known as Notice B in this case. That essentially relates to the correct interpretation of the General Permitted Development Order at the relevant time being the one of 1995 although it has more recently been replaced this year. In particular, Mr Wills relies on the deeming provision in the relevant legislation to the effect that if a local planning authority has not responded within twenty-eight days to an application then there is deemed to be planning permission granted.
8. It may well be that the exact scope of that provisions needs to be explored more closely than has hitherto been possible in the case law: for example, the decision of Mr Justice Coulson in Harrogate Borough Council v Foster [2012] EWHC 3260 (QB), in particular at paragraph 54. Again, the relationship between that judgment and the decision of the Court of Appeal in what is now a relatively old case, Clarke v Secretary of State for the Environment [1993] 65 P & CR 85 may need to be explored further by this court. In particular, because Mr Wills contends that at the date of Clarke, which Mr Justice Coulson followed in Harrogate, the twenty-eight day provision did not exist. Whether at the end of the day that matters or not is not for me to say but will no doubt be the subject of submission before the judge who considers this case at the substantive hearing.
9. Finally, Mr Wills, although he did not develop this point in writing, has briefly suggested that there may have been an error in the approach taken by the inspector to the appeal before her under ground (d). This relates particularly to a finding of fact between paragraphs 22 and 33 which, it is common ground, was mistaken as to the date when the appellant's wife returned from Italy to the United Kingdom. Although at first glance it might be said that was simply a typing error, it is noticeable that the year 2011 appears not just once at paragraph 22 but in several passages later in the same section of the decision letter.
10. At the end of the day, Miss Dehon, who has appeared for the Secretary of State, may be right to submit that even if there was an error of fact it had no material impact on the outcome. That, it seems to me, is something that should be explored further at a substantive hearing.
11. For those reasons I propose to grant permission to bring this appeal but only on the three grounds which I have mentioned in the course of this short judgment and which are well known to counsel on both sides from their own very helpful written and oral submissions.
12. Can I check if there is anything else, Mr Wills?
13. MR WILLS: I think in common with your previous case, it may be a matter of reserving costs and no further direction.
14. MR JUSTICE SINGH: Yes. Costs will be reserved. Miss Dehon, is there any other direction needed?
15. MISS DEHON: No.