Appellant to pay council's costs in doomed appeal

An inspector has ordered payment of the full costs incurred by a Berkshire council in defending an appeal on which there was no prospect of success.

The appellant had been refused a certificate of lawful use (LDC) for retail sales. At the start of the inquiry, the Council asked for a ruling as to whether the inquiry should proceed given that the appeal could not succeed with an enforcement notice in force relating to the appeal site by virtue of Section 191(2)(b) of the 1990 Act. Written submissions on this point of law had been exchanged by the parties prior to the inquiry.

The appellant had not appealed an earlier enforcement notice and their legal representative sought to argue that as the use had gained immunity by virtue of the ten-year rule prior to enforcement action, the notice could not take away that lawful use, whether or not the enforcement notice had been appealed.

The inspector was unequivocal that this argument was contrary to the Act and case law, finding parallels with Challinor. In this case the Court of Appeal found that even in the absence of a certificate of lawful use, a use may be lawful if it is immune from enforcement action because of the passage of time but such lawful rights will be lost if an enforcement notice is served and the rights are not then raised as a ground of appeal.

Rejecting the appellant’s argument that it would be in the public interest for the inquiry to make a finding as to whether an LDC could have been issued but for the enforcement notice, the inspector ruled that hearing further evidence would be a waste of time and expense and decided the council’s decision had been well-founded and dismissed the appeal.

Inspector: B M Campbell; Inquiry


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