Hearing request rejected in enforcement action

An appellant who claimed that his appeal against an enforcement notice should have been dealt with via a hearing and not through the written representations procedure has failed to get an inspector's decision quashed, the high court concluding that there had not been any procedural unfairness.

The council had issued the notice on the basis that a detached structure erected in the appellant’s garden was being occupied as an independent dwellinghouse. The notice required the unauthorised use to cease and the notice was appealed, with the appellant electing to follow the written representation procedure. The planning inspectorate advised the appellant on the merits of the adopted procedure and the potential for a hearing. However, the appellant continued to proceed by way of written submissions and in the council’s evidence it was stated that the unauthorised use had ceased. But the appellant failed to correct this error and the inspector, in relying on the council’s evidence, dismissed the appeal. The appellant stated that the inspector should have changed the procedure so that a hearing could be held.

Mr Justice Lang rejected the challenge. The appellant had chosen the written representations procedure and it had been open to him to request a change in the proceedings after identifying the error in the council’s submissions. The Town and Country Planning Act 2008 removed the appellant’s automatic right to have an oral hearing and while under article 6 the European Convention on Human Rights he had a general right to a hearing, this was unequivocally waived when the written procedure had been chosen. The judge concluded that fairness did not require an oral hearing and the inspector had a broad discretion to determine the appeal on the evidence available. The challenge was rejected.

Chhokar v Secretary of State for Communities and Local Government;

Date: 18 September 2014

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