This was an appeal under s.289 of the Town and Country Planning Act 1990 against the decision of a Planning Inspector to dismiss the Appellant’s appeal against an enforcement notice issued to him by the London Borough of Enfield in respect of the conversion of a single family dwelling-house into five self-contained flats. The Borough’s primary objection to this change of use was that the flats would be too small to provide adequate residential amenity for their occupants.
At the inquiry before the Inspector, the Appellant asked him to consider permitting an alternative 3-flat scheme instead of the 5-flat scheme if he agreed with the Borough that the latter would be unacceptable. Dismissing the appeal, the Inspector concluded that he did not have power to consider the 3-flat scheme under either Ground (a) or Ground (f), which were the two grounds relied upon by the Appellant in this context.
In a reserved judgment, Ouseley J., noting that the issues were “not without difficulty” held:
1. That the Inspector’s powers under the Ground (a) appeal were confined by s.177 of the 1990 Act to granting permission for the development enforced against and not a different development, which the 3-flat scheme was.
2. Under Ground (f), however, the Inspector could have altered the requirements of the enforcement notice so as to require the 5-flat scheme to be converted to the 3-flat scheme (which would then received deemed planning permission under s.173(11) once the requirements of the notice were complied with), provided that he was satisfied that in doing so he would not be offending the Wheatcroft principle by granting permission from something which was “substantially different” than that applied for / enforced against. The Inspector’s decision letter contained no assessment of whether the 3-flat scheme would be consistent with the Wheatcroft principle.
3. The Witness Statement produced by the Inspector in response to the s.289 appeal, in which he explained the thinking behind his conclusions that he did not have power under grounds (a) or (f) to consider the 3-flat scheme, was inadmissible since it amounted to after-the-event reasoning which went further than simply elucidating what was said in the decision letter.
4. Accordingly, the appeal was allowed and the matter remitted to the Secretary of State for reconsideration.
At paras. 51-53 the Ouseley J. made the following observations of general application to witness statements by planning inspectors in response to High Court challenges to their decisions:
“51. I add that I would strongly discourage the use of witness statements from Inspectors in the way deployed here. The statutory obligation to give a decision with reasons must be fulfilled by the decision letter, which then becomes the basis of challenge. There is no provision for a second letter or for a challenge to it. A witness statement should not be a backdoor second decision letter. It may reveal further errors of law. In my view, the statement is not admissible, elucidatory or not.
52. However, if that is wrong, the question whether the statement elucidates or contradicts the reasoning in the decision letter, and so is admissible or inadmissible on Ermakov principles, can only be resolved once the decision letter has been construed without it. To the extent that a Court concludes that the reasoning is legally deficient in itself, or shows an error of law for example in failing to deal with a material consideration, it is difficult to see how the statement purporting to resolve the issue could ever be merely elucidatory. A witness statement would also create all the dangers of rationalisation after the event, fitting answers to omissions into the already set framework of the decision letter, risking demands for the Inspector to be cross-examined on his statement, and creating suspicions about what had actually been the reasons, all with the effect of reducing public and professional confidence in the high quality and integrity of the Inspectorate.
53. Inspectors could be required routinely to produce witness statements when a reasons challenge was brought or when it was alleged that a material consideration had been overlooked, since the challenging advocate would be able to say that, in its absence, there was nothing to support the argument put forward by counsel for the Secretary of State, when there so easily could have been, and he must therefore be flying kites of his own devising. This is not the same as an Inspector giving evidence of fact about what happened before him, which can carry some of the same risks, but if that is occasionally necessary, it is for very different reasons.”
The Secretary of State is seeking permission to appeal from the Court of Appeal on the grounds that (1) s.177 delineates not only what can be granted permission on an enforcement appeal under ground (a) but also what can be granted permission by virtue of under-enforcement pursuant to ground (f); and (2) that Ouseley J.’s approach to the admissibility of Inspector’s witness statements is contrary to authority and principle.
Jonathan Wills appeared for the Appellant (instructed by Kingsley Smith).
Charles Banner appeared for the Secretary of State (instructed by the Treasury Solicitor).