AC-2024-LON-002192 - [2025] EWHC 2815 (Admin)

In light of my conclusion that the Inspector made no error in concluding that the occupiers were served with the Enforcement Notice, the question whether any occupiers were substantially prejudiced by a failure to serve them does not arise. As Ground 2 is academic, I shall address it shortly. It concerns the Inspector’s conclusion that, if he was wrong in concluding that all the occupiers were served, nonetheless they were not substantially prejudiced by the failure to serve them: s.176(5). The Inspector stated:

“MJL Contracts did say they would appeal, but they didn’t provide any representations to the current appeal or explain what they would have appealed about. In fact not one of the very many ‘occupiers’ provided any representations or turned up at the inquiry, despite the fact that, eventually, they all did know about the Inquiry. An appeal was made by the appellant which up until the last minute included a ground (a). The appellant withdrew that without explanation, and the explanation they did give as part of the Council’s costs claim suggested they decided, wisely in my view, they did not stand a chance of success. It is difficult to see what prejudice therefore any of the occupiers suffered.”

The appellant contends that this conclusion is unreasonable in the Wednesbury sense. The occupiers were deprived of the ability to appeal against the Enforcement Notice. The Council’s planning witness conceded that one or more of the occupiers might, if they had been served (assuming for this purpose they had not been), have appealed and included grounds different to those pursued by the appellant and/or argued any appeal grounds in a different way. The appellant relies on the decision of another inspector in relation to land in Waltham Forest that occupiers were substantially prejudiced in circumstances where, by the time they knew about the notice it was too late for them to appeal against it, the enforcement action would in most cases lead to the loss of their home, and if they had been served they would likely have appealed, and they would have better understood the enforcement and appeal process and so made more substantial and/or more comprehensive representations than they had made in the appeal.

The respondent submits that this case is much closer to Cash v Secretary of State for Communities and Local Government [2012] EWHC 2908 (Admin) in which an appeal against an inspector’s conclusion that the occupiers suffered no substantial prejudice as a consequence of not being served was found (following a rolled up hearing) to be unarguable.

In my judgment, the issue is fact-specific and so little reliance can be placed on these decisions. If, as is the case here, an unserved occupier did not know of an enforcement notice until it was too late to file an appeal, and there is evidence that the occupier would have appealed if he had learned of the enforcement notice in time, no doubt that may often lead to the conclusion that the occupier has been substantially prejudiced by the failure of service. But it cannot be said that is the only reasonable conclusion an inspector can reach, regardless of the circumstances.

In this case, all of the occupiers knew about the Inquiry yet none chose to attend or to make any representations. Only one occupier complained of non-service: MJL Contracts Ltd. That company could have attended, and made representations in support of the appellant’s appeal, but chose not to do so. Beyond asserting that it would have appealed, MJL Contracts Ltd gave no indication of any basis on which it would have sought to do so, and so the assertion that it was substantively prejudiced was speculative. The appellant, who was the owner of the Land, was professionally represented and brought a broadly based appeal, which until the last minute included an appeal pursuant to s.174(2)(a) of the 1990 Act. It is clear that the Inspector, having considered the submissions in respect of ground (a) prior to its late withdrawal, and having visited the site and held an Inquiry, considered it hopeless. More generally, his view that there was no real prospect that an appeal or submissions by an occupier would have made a substantive difference to the outcome, is readily apparent. That was a fact-specific determination which the Inspector was in an excellent position to make, and I am not persuaded that his determination that there was, in any event, no substantial prejudice to any occupier was unreasonable.

As is common ground, it follows that the Costs Ground must also be dismissed.