Factual and Procedural Background
This case concerns the effect of remittal of a matter to the Secretary of State for rehearing and determination following a successful appeal to the court under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision of the Secretary of State on an appeal under section 174 of the 1990 Act against an enforcement notice.
The Appellant owns a property in Dorset that was formerly a dairy farm but has ceased agricultural use. The farm buildings have been used for various non-agricultural purposes since at least the mid-1990s. The local planning authority granted lawful use certificates and planning permissions for some uses but issued enforcement notices requiring cessation of others. The Appellant appealed against nine enforcement notices and two refusals of lawful use certificates to the Secretary of State. The enforcement notice appeals were based on grounds (a), (b), (d), (f), and (g) under section 174(2) of the 1990 Act. An inspector appointed by the Secretary of State allowed two appeals but dismissed the rest.
The Appellant then brought a further appeal to the High Court under section 289 of the 1990 Act against the inspector's decision on five enforcement notices. This appeal was disposed of by a consent order granting permission to appeal and remitting the decisions on those five enforcement notices for re-determination on specified grounds, notably because the inspector had dealt with ground (a) compendiously rather than separately, contrary to legal requirements.
Following the remittal, the parties disagreed on the scope of the rehearing. The local planning authority sought to limit reconsideration to ground (a) alone, while the Appellant wished to rely on additional grounds, particularly ground (d). The Planning Inspectorate initially proposed limiting the inquiry to ground (a) but allowed for new evidence on other grounds if material. Later, it agreed to appoint a new inspector and held a pre-inquiry meeting to determine the scope of the rehearing.
The new inspector determined that the inquiry would only reconsider ground (a) fully and consider new evidence on ground (f), but excluded ground (d) due to lack of new evidence and the Appellant's attempt to re-run old evidence to obtain a different conclusion. The Appellant applied for judicial review of this determination, which was dismissed by the Administrative Court. The Appellant then appealed to the Court of Appeal on two grounds: first, that the Secretary of State was obliged to reconsider the entire appeal de novo including ground (d); second, that a letter from the Planning Inspectorate constituted a binding decision that all grounds would be reheard de novo, preventing exclusion of ground (d).
Legal Issues Presented
- Whether, upon remittal under section 289 of the 1990 Act, the Secretary of State is obliged to rehear and determine the whole enforcement notice appeal de novo, including grounds not subject to the appeal to the court, or whether the Secretary of State has discretion to limit the scope of the rehearing.
- Whether the Planning Inspectorate's letter of 15 January 2008 constituted a binding decision that all grounds of the enforcement notice appeals would be reheard de novo, thereby precluding exclusion of ground (d) from the rehearing.
Arguments of the Parties
Appellant's Arguments
- The Secretary of State is obliged to rehear and determine the entire enforcement notice appeal de novo following remittal under section 289, including all grounds, even those not raised in the appeal to the court.
- The word "matter" remitted for rehearing refers to the whole appeal, requiring a full rehearing rather than partial reconsideration.
- The Planning Inspectorate's letter of 15 January 2008 accepted the need for a de novo decision on all grounds and thus established a legitimate expectation that all grounds, including ground (d), would be reconsidered.
Secretary of State's Arguments
- The Secretary of State has a broad discretion, subject to public law principles, to determine the scope of the rehearing following remittal under section 289.
- The rehearing may be limited to the grounds that led to the successful appeal and any other matters where there is new evidence or material change in circumstances.
- The Planning Inspectorate's letter of 15 January 2008 did not amount to a binding decision to rehear all grounds de novo and was consistent with a limited scope focused on correcting the identified legal error.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Bruschweiller v Secretary of State for the Environment and Chelmsford Borough Council [1996] JPL 292 |
Requirement to consider ground (a) appeals separately rather than compendiously under the 1990 Act. |
Recognized as the legal error in the original inspector's decision leading to remittal. |
| Newbury District Council v Secretary of State for the Environment [1988] JPL 185 |
Discretion of the Secretary of State in rehearing appeals following remittal; not necessarily required to rehear entire appeal de novo. |
Supported the Secretary of State's discretion to limit rehearing scope to matters necessary to correct the identified error. |
| Kingswood District Council v Secretary of State for the Environment [1988] JPL 248 |
Interpretation of remittal and rehearing obligations; misreading of Newbury on scope of rehearing. |
Court found that the requirement to rehear entire appeal de novo was overstated in this case and not binding. |
| Hartnell v Minister of Housing and Local Government [1963] 1 WLR 1141 |
Principles relating to quashing and reconsideration of planning decisions. |
Supported the distinction between quashing and remittal and the discretion of the Secretary of State on rehearing scope. |
| Price Brothers (Rode Heath) Ltd v Department of the Environment (1978) 38 P&CR 579 |
Reconsideration scope following quashing of decisions. |
Reinforced the principle that quashing requires full reconsideration, unlike remittal. |
| R (Lee) v First Secretary of State and Swale Borough Council [2004] JPL 466 |
Recent authority supporting discretion in rehearing scope following remittal. |
Used to support the Secretary of State's position on discretion. |
| Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311 |
Nature and scope of rehearings on appeal under CPR 52.11. |
Distinguished between full rehearing and more limited rehearing depending on context. |
| EI Dupont de Nemours & Co v ST Dupont (Note) [2006] 1 WLR 2793 |
Rehearings under former RSC Orders 55 and 59 not necessarily full rehearings. |
Supported that "rehearing" is context-dependent and may be limited. |
| DK (Serbia) and Others v Secretary of State for the Home Department [2006] EWCA Civ 1747 |
Effect of orders requiring reconsideration and the scope of reconsideration. |
Guided the court on how reconsideration should be approached, emphasizing limited revisiting of factual findings unless affected by error or new evidence. |
| ND (Guinea) v Secretary of State for the Home Department [2008] EWCA Civ 458 |
Power of courts to limit scope of remittal or reconsideration orders. |
Referenced regarding court's power to define scope of remittal but with some judicial reservations. |
Court's Reasoning and Analysis
The court analysed the statutory framework under sections 174 and 289 of the 1990 Act, the relevant procedural rules, and prior case law, focusing on the meaning and effect of a remittal for rehearing and determination by the Secretary of State. It found that the statute and rules do not compel the Secretary of State to rehear and determine the entire enforcement notice appeal de novo following remittal. Instead, the Secretary of State has a discretion, subject to public law principles, to determine the scope of the rehearing.
This discretion allows the Secretary of State to focus the rehearing on the specific grounds that led to the successful appeal and any other matters where new evidence or material changes in circumstances justify reconsideration. The court rejected the Appellant's submission that the Secretary of State must reconsider all grounds regardless of whether they were part of the appeal to the High Court.
The court further considered the Planning Inspectorate's letter of 15 January 2008, concluding that it did not constitute a binding decision that all grounds would be reheard de novo. The letter's language was ambiguous and did not create a legitimate expectation that ground (d) would be reconsidered. The subsequent inspector's determination excluding ground (d) was lawful and within the Secretary of State's discretion.
The court also noted the importance of clear court orders defining the scope of remittal and the error to be corrected but observed that in this case, the consent order did not address the scope of rehearing, which led to the dispute. The court endorsed the Administrative Court's conclusion that the Secretary of State's discretion allows for the exclusion of grounds without new evidence or material change, consistent with public law principles.
Holding and Implications
The Court of Appeal dismissed the Appellant's appeal.
The holding confirms that following a remittal under section 289 of the Town and Country Planning Act 1990, the Secretary of State is not legally required to rehear and determine the entire enforcement notice appeal de novo. Instead, the Secretary of State possesses a discretion to limit the scope of the rehearing to those grounds that gave rise to the successful appeal and any other grounds supported by new evidence or material changes in circumstances.
The decision upholds the Secretary of State's power to exclude grounds lacking new evidence from rehearing, preventing parties from re-litigating settled issues absent justification. The ruling clarifies the legal effect of remittal orders and the scope of rehearing, emphasizing the importance of clear court orders and the exercise of discretion within public law principles. No new precedent was established beyond interpreting existing statutory and procedural frameworks.