England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Mitting
[2009] EWHC 234 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/12/2009

Lord Justice Richards :

1. 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.
2. The appellant owns a property in Dorset which was once a dairy farm but has ceased to be used for agricultural purposes. The farm building complex is divided into units which, since at least the mid-1990s, have had a variety of non-agricultural uses. The local planning authority, West Dorset County Council, granted lawful use certificates and planning permissions in respect of some of those uses, but served enforcement notices requiring other uses to cease. The appellant appealed to the Secretary of State against nine of the enforcement notices, as well as against two refusals of lawful use certificates. The enforcement notice appeals relied on a number of the grounds specified in section 174(2) of the 1990 Act, namely grounds (a), (b), (d), (f) and (g). In a decision letter dated 28 December 2006 the inspector appointed by the Secretary of State allowed two of the appeals but dismissed the remainder.
3. In relation to five of the enforcement notices the appellant then brought a further appeal to the High Court under section 289 of the 1990 Act against the inspector's decision. The appeal was disposed of by a consent order endorsed by Langstaff J and sealed on 14 May 2007. The operative part of the order granted permission to appeal, allowed the appeal and continued:

"3. Further pursuant to Section 289 TCPA, the First Respondent's decisions on appeals … [the five enforcement notice appeals were listed] contained in a Decision Letter dated 28 December 2006 made under Section 174 TCPA be and is hereby remitted for re-determination on the grounds set out in the Schedule appended hereto".

The schedule stated:

"1. This is an application pursuant to s.289 TCPA in which the Claimant seeks to remit for re-determination decisions by the First Defendant's Inspector on five appeals made under s.174 TCPA against five enforcement notices which decisions are set out in the Decision Letter dated 28 December 2006. By the said Decision Letter, the First Defendant's Inspector dealt with appeals against a total of nine enforcement notices and two refusals of lawful development certificates.

2. The Claimant contends that the decision of the inspector was deficient in that the inspector dealt with ground (a) in the five enforcement notice appeals compendiously rather than separately, contrary to the provisions of the 1990 Act and to the decision in Bruschweiller v Secretary of State for the Environment and Chelmsford Borough Council [1996] JPL 292.

3. The First Defendant has carefully considered the said decision in the light of the draft Appellants' Notice and the matters recited in the Witness Statement ….

4. The First Defendant concedes that the decision on the five appeals set out in paragraph 3 of this Order should be remitted for re-determination. The First Defendant accepts that the inspector has indeed erred in law by dealing with ground (a) in the said five appeals compendiously rather than separately. "

4. Having consented to that order, the parties were unable to agree thereafter on the method and scope of the rehearing. In short, the council sought to have the appeals redetermined under ground (a) alone; the appellant sought to rely on other grounds as well, in particular on ground (d); and The Planning Inspectorate kept changing its position in response to the representations received. In a letter dated 13 November 2007, following a threat by the council to apply for judicial review, The Planning Inspectorate adopted the following position:

"Further to recent correspondence about the 5 appeals listed below, we now propose to limit the scope of the inquiry to the matter that gave rise to the successful challenge, i.e. ground (a). However, we also consider that if either party proposes to present new evidence that was not previously presented, or report a change in circumstances since the previous decision, which it considers is material to grounds (b), (d), (f) or (g), the Inspector would have a duty to hear it ….

Moreover, we propose that the Inquiry should be re-opened by the same Inspector."

5. In the ensuing correspondence, the appellant's solicitors objected to the course proposed and made submissions to the effect that there was no power within the rules to limit the ambit of the re-opened inquiry and that following a remittal the Secretary of State had to start again "de novo with a clean sheet". Having considered those submissions, The Planning Inspectorate wrote to the appellant's solicitors on 15 January 2008 in these terms (with a copy to the council):

"I have considered the points you have made in relation to how the appeals should be re-determined. I accept that the decision on these appeals needs to be taken 'de novo'. However, in my opinion this does not mean that all the arguments put forward at the earlier inquiry need to be rehearsed and presented all over again. Previous evidence together with any new relevant material would be taken into account when the appeals are re-determined.

In this respect, the flaws identified by the Court in quashing the original decision (ground (a)) will be relevant together with any material changes in circumstances since the close of the previous inquiry. This will form the basis of the scope of the matters to be rehearsed before the Inspector at the new inquiry.

I suggest that a Pre-Inquiry meeting is held with the Inspector to establish which areas, if any, of the appeal have new evidence, set a date for written submissions, agree a statement of common ground and to agree how the inquiry will proceed ….

Finally, in relation to your request for us to reconsider the appointment of the same Inspector, I agree in view of the circumstances, that it would be sensible to appoint a new Inspector."

6. Thereafter a new inspector, Mr Keith Turner, was appointed, a pre-inquiry meeting was fixed for 12 March 2008 and an inquiry date was set. For the purposes of the pre-inquiry meeting the inspector provided written "opening remarks", which included these comments:

"The primary purpose of this meeting is to establish the scope of the evidence which needs to be heard in order to properly carry out the re-determination. There has been disagreement between the Parties as to the extent to which the appeals need to be re-determined. If necessary I shall hear submissions in relation to that, but I hope that we can reach some agreement. The Council contend that only the appeals under Ground (a) need to be reconsidered. However, I have a duty to consider the matters de novo. This also involves taking into account any circumstances which have changed since the previous inquiry.

The Appellant has indicated that he disputes the previous Inspector's understanding of some of the evidence on matters of fact and, if this can be shown to have led him to an incorrect conclusion, then I must review those conclusions. This may give rise to re-hearing much if not all of the evidence given in relation to the appeals under Ground (d), unless some significant measure of agreement can be reached between the parties."

7. The minutes of the pre-inquiry meeting record that The Planning Inspectorate had sought to define the scope of the redetermination inquiry, and reference is made inter alia to the letters of 13 November 2007 and 15 January 2008. The minutes continue:

"In order to resolve the disagreement about the scope of the inquiry it was agreed that both parties would present legal submissions together with case law relied upon in writing to the Inspector not later than 20 March 2008. These submissions are to take into account all events and correspondence on this matter and provide self-contained information upon which the Inspector will then form a judgement and give a determination by 8 April 2008. This will give the parties, if either remains aggrieved by the determined scope of the Inquiry, the opportunity to resolve the matter though Judicial Review before embarking upon preparation for it."

8. Submissions were duly presented to the inspector, who communicated his decision on the scope of the inquiry in a written determination dated 8 April 2008. For reasons clearly and fully set out in the determination, the inspector decided that the inquiry would consider only two matters: first, the redetermination of the appeals under ground (a) in their entirety, including any new evidence not available to the parties at the time of the previous inquiry and any material change of circumstances since then; and secondly, in relation to the appeals under ground (f), consideration of any new evidence not available to the parties at the time of the previous inquiry and any material change of circumstances since then. In relation to ground (d) the inspector concluded that the appellant was seeking to re-run the evidence already adduced, but with the sole purpose of trying to persuade the new inspector to arrive at a different conclusion from that reached by the first inspector; and there was no new evidence relevant to ground (d) to justify opening that ground. Ground (d) was therefore excluded from the scope of the inquiry; and in a letter dated 17 April 2008 The Planning Inspectorate indicated that, in the light of the inspector's determination, the previous decisions would be re-issued so far as they pertained to ground (d).
9. The appellant applied for judicial review of the inspector's determination, contending that the exclusion of ground (d) was wrong in law. The claim was dismissed by Mitting J in the Administrative Court on 2 February 2009. The appeal to this court from the decision of Mitting J is brought on two grounds, which may be summarised as follows:

i) The first is a point of general principle. The appellant contends that when a matter is remitted to the Secretary of State for redetermination following a successful appeal under section 289 of the 1990 Act, the Secretary of State (or his inspector) is obliged to reconsider the whole of the enforcement notice appeal de novo, including grounds that were not the subject of the further appeal under section 289, so that the inspector in this case erred in law in excluding ground (d) from the scope of the inquiry.

ii) The second is specific to the facts of the present case. The appellant contends that The Planning Inspectorate's letter of 15 January 2008 amounted to a decision by the Secretary of State that all the enforcement notice appeals be heard de novo, so that the inspector had no power thereafter to exclude ground (d) from the scope of the inquiry.

Legislative framework

10. An appeal to the Secretary of State against an enforcement notice lies under section 174(1) of the 1990 Act, which is within Part VII of that Act. By section 174(2), an appeal may be brought on any of the following grounds:

"(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by section 172;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."

11. An appeal to the High Court against a decision of the Secretary of State on an enforcement notice appeal lies under section 289 of the 1990 Act, which reads:

"289.(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.

…

(5) In relation to any proceedings in the High Court or the Court of Appeal brought by virtue of this section the power to make rules of court shall include power to make rules –

(a) prescribing the powers of the High Court or the Court of Appeal with respect to the remitting of the matter with the opinion or direction of the court for re-hearing and determination by the Secretary of State …."

12. The relevant rules of court were formerly contained in RSC Order 94 rule 13 and are now to be found, to materially the same effect, in CPR Part 52 and the Part 52 Practice Direction. CPR 52.20 provides that where the Secretary of State has given a decision in proceedings on an appeal under Part VII of the 1990 Act against an enforcement notice, the appellant, the local planning authority or another person having an interest in the land to which the notice relates may appeal to the High Court against the decision on a point of law. Paragraph 22.6C of the Part 52 Practice Direction contains detailed provisions in respect of such appeals, including the following:

"22.6C(14) Where the court is of the opinion that the decision appealed against was erroneous in point of law, it will not set aside or vary that decision but will remit the matter to the Secretary of State for re-hearing and determination in accordance with the opinion of the court."

I have emphasised the words that are central to the present appeal.

13. The conduct of inquiries by inspectors on enforcement notice appeals is regulated by the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 ("the Procedure Rules"). For present purposes it suffices to set out rule 21, which deals specifically with the procedure following remittal of an appeal:

"21.(1) Where a decision of an inspector on an appeal for which an inquiry has been held is remitted by any court to the Secretary of State for rehearing and redetermination, the Secretary of State –

(a) shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of the matters on which further representations are invited in order for him to consider the appeal further;

(b) shall give those persons the opportunity of making written representations to him about those matters or asking for the re-opening of the inquiry; and

(c) may, as he thinks fit, cause the inquiry to be re-opened (whether by the same or a different inspector) …."

The effect of a remittal by the High Court

14. For the appellant, Mr Findlay QC contended that, on a remittal by the court under section 289(5)(a) and the relevant rules, the Secretary of State is obliged to rehear and determine the whole of the enforcement notice appeal and is not entitled to confine attention to the grounds that were the subject of the appeal to the court. Case management powers may be used to limit the scope of the inquiry to those matters that are in issue between the parties, but a party cannot be prevented from opening up a ground that was decided by the first inspector even though it was not raised in the appeal to the court.
15. Mr Findlay submitted that the wording of the statute and rules supports that contention. The "matter" remitted for rehearing and determination is the appeal as a whole, and the very concept of a "rehearing" requires consideration of the matter de novo. There is no provision for rehearing and determining part only of the appeal, and one cannot rehear and determine an appeal by reissuing parts of the previous decision and re-opening the inquiry only in respect of other parts. The effect of the decided cases, namely Newbury District Council v Secretary of State for the Environment [1988] JPL 185 and Kingswood District Council v Secretary of State for the Environment [1988] JPL 248, is also that a rehearing and determination of the whole appeal is required.
16. The contrary case, advanced by Mr Beard on behalf of the Secretary of State, is that the Secretary of State has a broad discretion, subject to the application of ordinary public law principles, as to the manner in which an enforcement notice appeal is reheard and determined following a remittal. That discretion is vouchsafed by the decision in the Newbury case; and in so far as the deputy judge in the Kingswood case interpreted Newbury as requiring the Secretary of State to reconsider an enforcement notice appeal de novo, he was in error. The Secretary of State may decide that it is appropriate to rehear the appeal de novo on the particular ground or grounds that led to the successful appeal to the court. He may decide that other matters should also be dealt with (for example, to consider whether there has been a material change of circumstances, including any change of policy, since the original decision was taken). He is not, however, obliged to approach the whole appeal de novo or to allow a party to open up grounds that were not raised in the appeal to the court.
17. Mitting J found in favour of the Secretary of State on this issue. In my judgment he was right to do so. It would be surprising and unsatisfactory if a remittal following a successful appeal under section 289 gave rise to the inflexible position contended for by Mr Findlay, and I do not read the statute and rules as compelling such a result. On the contrary, the existence of a discretion on the part of the Secretary of State is consistent with the statute and rules and is supported by the decision in the Newbury case.
18. Paragraph 22.6C(14) of the Part 52 Practice Direction, in line with section 289(5)(a) of the 1990 Act, provides that where the court is of the opinion that the decision appealed against under section 289 was erroneous in point of law, "it will not set aside or vary that decision" but will remit the matter to the Secretary of State for rehearing and determination in accordance with the opinion of the court. Mr Findlay told us that the reason why the decision is not to be set aside is to preserve the legal effect of the enforcement notice. Be that as it may, the position is to be contrasted with that under section 288, where the normal remedy is for the court to quash a decision of the Secretary of State if it is satisfied that the decision is not within the powers of the 1990 Act (see section 288(5)(b)). Where a decision is quashed or set aside, I can readily accept that the Secretary of State has to consider the case de novo and reach a fresh decision. But there is no evident reason why the same approach should be required where the court does not set aside the erroneous decision but remits the matter to the Secretary of State for rehearing and determination in accordance with the opinion of the court. In that situation there must plainly be a "rehearing" sufficient to enable the Secretary of State to remedy the error identified by the court and to make a determination in accordance with the opinion of the court. In the absence of any further provision, however, it seems to me that it is left to the Secretary of State to decide how to go about the task and what matters to consider in reaching the further determination. Thus the scope of the rehearing is within the discretion of the Secretary of State rather than being dictated by the statute or rules.
19. That is certainly how Kennedy J understood the position in the Newbury case. The case concerned an enforcement notice appeal under section 246 of the Town and Country Planning Act 1971, the precursor of section 289 of the 1990 Act. On the appeal, the inspector granted planning permission for a particular use of the land. He also amended the enforcement notice in relation to the stationing of caravans on the land, but in a way that left the position unclear. Although the note of the case does not spell the matter out very clearly, there appears to have been an appeal to the court leading to a remittal by consent to the Secretary of State. Arguments ensued as to whether the Secretary of State would deal simply with the inspector's error (the appellant being concerned that the inspector's grant of planning permission should remain unscathed). In December 1985 the Secretary of State redetermined the matter, but the position concerning the caravans still remained unclear. After further dispute, the council suggested that owing to the length of time it had taken to resolve the situation the Secretary of State should redetermine the whole matter. The Secretary of State agreed, despite objections on the part of the appellant's solicitors. This was the background to an appeal under section 246 against the December 1985 redetermination. The gist of the case for the appellant was that it was not open to the Secretary of State to interfere, on a redetermination, with the inspector's grant of planning permission in the original decision on the enforcement notice appeal. Kennedy J rejected that line of argument, holding that the whole case should be remitted to the Secretary of State for rehearing and determination, and making the following observations about the jurisdiction of the Secretary of State on the remittal:

"As to the jurisdiction of the Secretary of State when the matter went back before him, that was not a matter which of itself the court was called upon to decide, but he (Kennedy J) could say this, that in dealing with the matter as he had done on December 9, 1985, it seemed that he had regarded himself as being fettered to a greater extent than in law was the case. On that occasion, he was in a position to review the whole of the matter. Whether in fact, in a situation such as that which arose in the present case, it would be appropriate to make any alteration other than that which had already been canvassed, ad nauseam, by each of the parties, was a matter to which no doubt he would give very careful consideration. It was plain that when a court had detected an error of law and the error of law was pointed out, the Secretary of State on reconsidering the position in the light of what had been said about the matter by the court might come to the conclusion that other alterations had to be made to his decision in the light of the court's expression of view as to the error of law. He could not be restricted to simply correcting the error of law on the face of the document, but if he made changes which went further than those which were called for as result of the expression of view which had been tendered by the court, and did so without reference to compelling new material, it stood to reason that there might be further litigation arising out of this revised decision" (page 188).

20. It was plainly Kennedy J's view that the Secretary of State was neither restricted as a matter of law to the correction of the error identified by the court nor required as a matter of law to consider the whole case afresh. Although the judge did not spell it out in these terms, the effect of his observations was that the Secretary of State had a discretion, to be exercised in accordance with public law principles.
21. Kennedy J's observations in the Newbury case were considered just two weeks later in the Kingswood case, which was decided by Mr Graham Eyre QC sitting as a deputy judge of the High Court. It so happened that Mr Eyre had been counsel for the appellant in Newbury, where his arguments as to the limitations on remittal had been rejected. It is important to note that Kingswood was a case under section 245 of the Town and Country Planning Act 1971, the precursor of section 288 of the 1990 Act; so that section 246 of the 1971 Act, the precursor of section 289 of the 1990 Act, was not directly in issue. In relation to section 245 a question arose as to the effect of the court quashing a decision of the Secretary of State by reference to certain specific identified grounds in the notice of motion. Counsel for the Secretary of State told the court that it was the Secretary of State's practice to deal with the matter de novo and gave an undertaking that the matter in the instant case would be considered de novo. Notwithstanding that concession, the deputy judge went on to consider the legal position, expressing the firm view that "the Secretary of State had to start again de novo with a clean sheet". In support of that view he referred to what Kennedy J had said in the Newbury case concerning section 246:

"In any event, Kennedy J found that the matter should be remitted under section 246 and that in a reconsideration with the advantage of the opinion of the court under section 246 the Secretary of State was obliged to treat the matter as being at large, even to the extent of putting at large a planning permission which had been granted some years before the Newbury case came to the court albeit that he expressly recognised that there would have to be compelling new material upon which the Secretary of State could act.

If it was right that the whole matter was reconsidered de novo on a remission under section 246, a fortiori where a decision was quashed, manifestly the matter should be reconsidered de novo. In the former case the advice of the court was forthcoming, and the Secretary of State had to have regard to it. In the second case the advice of the court might be apparent in the judgment, but the court was only entitled to quash the matter, and not specifically offer guidance to the Secretary of State, in a situation where he had to start all over again de novo. Thus he looked at that decision in support of the proposition that in relation to the more draconian measure of quashing, one would expect the Secretary of State to re-open, particularly if he was obliged to re-open the whole matter on a remission which might or might not be related to a very narrow point in the case itself …" (page 254).

22. With due respect to Mr Eyre, I take the view that in that passage he misstated the effect of Kennedy J's observations in the Newbury case. Kennedy J did not say that on a remittal the Secretary of State was obliged to treat the matter as being at large or to re-open the whole matter. Kennedy J's point was the very different one that the Secretary of State was not obliged to restrict the reconsideration to correction of the point of law identified by the court and had a discretion to reconsider the whole matter. I see no reason to doubt the correctness of what was said in Kingswood about the effect of a quashing order under section 245 (now section 288 of the 1990 Act): as Mr Findlay pointed out, it is supported by cases such as Hartnell v Minister of Housing and Local Government [1963] 1 WLR 1141 and Price Brothers (Rode Heath) Ltd v. Department of the Environment (1978) 38 P&CR 579, both of which were cited by the deputy judge, and has been relied on more recently by counsel for the Secretary of State in R (Lee) v First Secretary of State and Swale Borough Council [2004] JPL 466, at para 12. In so far as it touched on the effect of a remittal under section 289, however, what was said in Kingswood was based on a misreading of Newbury and is of no assistance.
23. As already mentioned, the requirement in section 289(5)(a) and paragraph 22.6C(14) of the practice direction is to remit "the matter" to the Secretary of State for rehearing and determination. Although there was some debate before us as to whether "the matter" means the decision appealed against or the enforcement notice appeal on which that decision was taken, I do not think that the point takes one very far. The consent order was expressed in terms of remittal of the inspector's "decision" on each of the enforcement notice appeals, and the language of remittal of "the decision" is also to be found in rule 21(1) of the Procedure Rules. On the other hand, as Mr Beard pointed out, paragraph 22.6C(14) of the practice direction differentiates between "the decision" appealed against and "the matter" remitted; and it does not make good sense to talk in terms of the Secretary of State rehearing and determining the decision. It seems to me that the draughtsman has chosen a deliberately vague expression (cf. remittal of "the case" in the context of asylum appeals, under section 103B(4)(c) of the Nationality, Immigration and Asylum Act 2002) and that the intended effect is to place the enforcement notice appeal as a whole before the Secretary of State for rehearing and determination in accordance with the opinion of the court. That accords with what was said in the Newbury case. In itself, however, it tells one nothing about the approach required to be taken in relation to the rehearing and further determination.
24. Mr Findlay submitted that the required approach is similar to that of a court holding a "rehearing" on the comparatively rare occasions when, pursuant to CPR 52.11, an appeal takes the form of a rehearing as distinct from a review of the decision of the lower court. A rehearing in that context will normally be a rehearing "in the fullest sense of the word", in which the court hears the case again and reaches a fresh decision unconstrained by the decision of the lower court: see per Brooke LJ in Tanfern Ld v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311, 1317, and per May LJ in EI Dupont de Nemours & Co v ST Dupont (Note) [2006] 1 WLR 2793, para 96. A "rehearing" is, however, a broad concept which in other contexts can involve a much more limited exercise than that. For example, in EI Dupont de Nemours, at paras 87-90, May LJ referred to rehearings on appeal under the former RSC Orders 55 and 59, which "were well understood not to extend to rehearings in the fullest sense of the word": the court did not hear the case again from the start, but reviewed the decision under appeal giving it the respect appropriate to the nature of the court or tribunal, the subject matter and, importantly, the nature of those parts of the decision-making process which were challenged. Thus it does not follow from the use of the word "rehearing" that the Secretary of State is required to hear the enforcement notice appeal de novo and reach an entirely fresh decision. What a rehearing requires depends on the context.
25. Mr Findlay also relied on observations of Latham LJ in DK (Serbia) and Others v Secretary of State for the Home Department [2006] EWCA Civ 1747, at paras 22-25, concerning the effect of an order under section 103A of the Nationality, Immigration and Asylum Act 2002 requiring the tribunal to "reconsider its decision" on an appeal. In relation to the process that the tribunal is required to engage in when, at the first stage of reconsideration, it has identified a material error of law in the relevant decision, Latham LJ said this:

"22. As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited.  It is not a rehearing: Parliament chose not to use that concept, presumably for good reasons.  And the fact that the reconsideration may be carried out by a differently constituted tribunal or a different Immigration Judge does not affect the general principle of the 2004 Act [i.e. the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, amending the Nationality, Immigration and Asylum Act 2002], which is that the process of reconsideration is carried out by the same body as made the original decision.  The right approach, in my view, to the directions which should be considered by the immigration judge ordering reconsideration or the Tribunal carrying out the reconsideration is to assume, notionally, that the reconsideration will be, or is being, carried out by the original decision maker.

23. It follows that if there is to be any challenge to the factual findings, or the judgments or conclusions reached on the facts which are unaffected by the errors of law that have been identified, that will only be other than in the most exceptional cases on the basis of new evidence or new material as to which the usual principles as to the reception of such evidence will apply ….

…

25. Accordingly, as far as the scope of reconsideration is concerned, the Tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision. That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only revisit them if there is new evidence or material which should be received in the interests of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them" (emphasis added).

26. Mr Findlay focused on the contrast between the process of reconsideration described by Latham LJ, which is similar to the approach for which the Secretary of State contends in the present case, and the "rehearing" which (in the sentence I have emphasised) Latham LJ expressly distinguished from that process as being a concept that Parliament chose not to use. On the face of it, Mr Findlay's point has some force to it. I am satisfied, however, that Latham LJ had in mind a rehearing in the fullest sense of the word and was not considering the full range of possible approaches embraced by the concept. Indeed, what Latham LJ said about the second stage of reconsideration in the asylum context seems to me to be highly apposite in the context of a remittal under section 289; and in my view what the statute and rules envisage by way of "rehearing" in this context is a process similar in substance to that of reconsideration. Here, too, the decision-maker (the Secretary of Sate, albeit acting through his inspectors) is required to revisit the decision in order to correct an error of law that has been identified in it; and here, too, as a matter of general principle, the appropriate course must be to approach the matter on the basis that any factual findings and conclusions, or judgments arising from those findings, which are unaffected by the error of law need not be revisited in the absence of new evidence or material (including, in the planning context, changes of policy) or other exceptional circumstances. Of course, the decision whether to revisit such matters lies in the discretion of the Secretary of State, and in citing what was said in DK (Serbia) I do not intend to lay down any form of template for the exercise of that discretion; but if a decision were made without good reason to revisit matters that did not need to be revisited in order to reach a determination in accordance with the opinion of the court, that decision might well be open to challenge. Again this is in line with the observations of Kennedy J in the Newbury case.
27. The view I have reached about the effect of a remittal is reinforced by an argument advanced by Mr Beard as to the absurdity to which the appellant's inflexible approach could lead. Mr Beard gave the example of an enforcement notice appeal relying on multiple grounds including, under ground (g), a fall-back argument that the period for compliance with the requirements of the enforcement notice was too short. If, following a lengthy inquiry, the Secretary of State dismissed the appeal on all substantive grounds but failed to address the ground seeking further time for compliance, an appeal to the court could be brought under section 289 in relation to ground (g) and would probably succeed. The court would have to remit the matter for rehearing and determination. The result of the appellant's approach would be that the Secretary of State was obliged to reconsider all of the grounds of appeal de novo, when rationally the only point he should need to deal with was whether and to what extent an extension of time should be granted for compliance with the requirements of the enforcement notice. Although this may be an extreme example, I agree that it serves to illustrate the problems inherent in the appellant's case. Such a result cannot have been the legislative intention.
28. I turn to consider a few additional points concerning the form and effect of the court's order. Mitting J had no doubt that "the court is entitled, on remitting the matter for re-hearing and determination, in accordance with its opinion, to limit re-hearing and determination only to those questions which gave rise to the appeal" (para 35 of his judgment). A similar robust view about the power of the court to set the terms of a remittal was expressed by the court in the context of section 103B(4)(c) of the Nationality, Immigration and Asylum Act 2002 in ND (Guinea) v Secretary of State for the Home Department [2008] EWCA Civ 458. For my part, I do have some doubt about the existence of such a power, or at least about the appropriateness of exercising it, in the present context, given what I have said about the discretion that the statute and rules leave to the Secretary of State as to the scope of the rehearing; but since the point does not arise for decision, it is unnecessary to say anything further about it.
29. It is of obvious importance that the order of the court (taken together with the judgment, if there is one) should define with clarity the error in the decision appealed against and thereby make clear what must be done in order to produce a determination in accordance with the opinion of the court (and, in so doing, also make clear what matters the parties are entitled to develop on the rehearing). Further, I see no reason why the order (or the judgment, if there is one) should not give guidance on, and set out any agreement between the parties in respect of, the scope of the rehearing: in that way the court can assist the process without fettering the Secretary of State's discretion.
30. The same principles apply to an order by consent such as was made in the present case. Since the order was endorsed by Langstaff J and the schedule was incorporated by reference in the order, the reasons set out in the schedule are properly to be treated as the "opinion" of the court. Paragraphs 2 and 4 of the schedule made clear that the error lay in dealing with ground (a) in the five enforcement notice appeals compendiously rather than separately and, therefore, that separate consideration of each enforcement notice appeal under ground (a) was required in order to produce a determination in accordance with the opinion of the court. What the order did not do was give any guidance as to the approach to be adopted by way of rehearing. The parties should have addressed their minds to that issue at the time of settling the schedule to the consent order rather than after the making of the order. On the other hand, although that would have speeded things up, it would not have solved or avoided the problem that gave rise to the present proceedings. The fundamental disagreement between the parties about the effect of remittal engages an issue of law that could not have been resolved by better drafting of the order.
31. In conclusion, the appellant's first ground of appeal should in my view fail. When a matter is remitted to the Secretary of State under section 289, there is no obligation on the Secretary of State to consider the whole of the enforcement notice appeal de novo. The inspector's decision to exclude ground (d) from the scope of the inquiry cannot therefore be successfully impugned on the ground of inconsistency with such an obligation.

Whether there was a decision to hear the enforcement notice appeals de novo

32. The second ground may be dealt with much more briefly. The appellant's argument is that if there was a discretion as to the scope of the rehearing, The Planning Inspectorate's letter of 15 January 2008 (quoted at para 5 above) contained a decision, taken in the exercise of that discretion, that all the enforcement notice appeals were to be heard de novo. That decision, it is submitted, established the inspector's remit and meant that it was not open to him to take a different decision excluding ground (d) from the scope of the inquiry. In support of that submission, Mr Findlay referred in general terms to principles of legitimate expectation and abuse.
33. The argument depends on the proper construction of the letter of 15 January 2008, read in the context of the previous correspondence. The position adopted in The Planning Inspectorate's letter of 13 November 2007 (see para 4 above) was that the scope of the inquiry would be limited to ground (a) together with consideration of any new evidence material to other grounds. In response to that letter, the appellant's solicitors submitted that the Secretary of State was required to start again "de novo with a clean sheet". Mr Findlay submitted that the letter of 15 January 2008, by its express acceptance that "the decision on these appeals needs to be taken 'de novo'", represented a change of position by The Planning Inspectorate, accepting the submissions made by the appellant's solicitors. He said that on receipt of that letter the appellant reasonably thought that the submissions made on his behalf had been successful.
34. In my judgment, the letter of 15 January 2008 did not have the effect for which Mr Findlay contended. Whilst one paragraph of the letter accepted that the decision had to be taken de novo, the next paragraph referred to "the flaws identified by the Court in quashing the original decision (ground (a)) … together with any material changes in circumstances since the close of the previous inquiry" as forming "the basis of the scope of the matters to be rehearsed before the Inspector at the new inquiry". In truth the letter was a bit of a muddle. Its overall effect, however, was more in line with what had been said in the letter of 13 November 2007 than with the submissions made by the appellant's solicitors, and in my view it did not amount to a substantial departure from the position set out in the earlier letter. In any event, it was not clear enough to give rise to a legitimate expectation that the appellant could re-open ground (d) at the inquiry, or to make it otherwise unlawful for the inspector to rule against the re-opening of ground (d). The very fact that it was subsequently thought necessary for the inspector to make a determination on the issue serves to underline that the letter was not understood to contain the clear-cut decision for which the appellant now contends. Nor did the appellant submit at the time that the inspector's hands were tied by the letter. On the contrary, the appellant's written submissions to the inspector included the assertion that the letter "cannot bind the inspector".
35. Mitting J rejected this ground of challenge in short order. I am satisfied that he was right to do so.
36. I should say finally that as the argument before us developed, I became increasingly troubled about the legal basis on which the inspector's determination of 8 April 2008 was made. Rule 21 of the Procedure Rules (para 13 above) deals with the procedure following remittal. It provides for the Secretary of State to take various steps. In so far as The Planning Inspectorate took a relevant decision, it must have been exercising the powers of the Secretary of State under rule 21. But in so far as the inspector was deciding on the scope of the inquiry, it is less clear that he can have been exercising those powers. Rule 14 of the Procedure Rules provides that an inspector "may in place of the Secretary of State take such steps as the Secretary of State is required or enabled to take under or by virtue of" a number of specified rules, which do not, however, include rule 21. Mr Beard at one point suggested that the inspector was exercising a power under rule 21, but also submitted that, having been appointed to determine the appeal, the inspector was entitled to exercise more generally the functions of the Secretary of State in relation to the appeal. A fall-back submission was that the inspector was merely exercising case management powers within a framework set by the decision contained in The Planning Inspectorate's letters of 13 November 2007 and/or 15 January 2008.
37. I prefer not to reach a concluded view on those submissions since, apart from the specific case advanced under the two grounds that I have already covered, the appellant did not contend that the inspector lacked the power to make his determination of 8 April 2008 and we did not hear full argument on the issue of delegated powers. Indeed, the parties are recorded as having agreed at the pre-inquiry meeting that the inspector would resolve the dispute about the scope of the inquiry and that his decision would be open to judicial review. Subject to clarification of the question of vires, however, there was obvious merit in the course followed by the inspector in this case. It led to a clear and well reasoned decision, dispelling the fog created by The Planning Inspectorate's earlier handling of the matter.

Conclusion

38. Accordingly, I would dismiss this appeal.

Lord Justice Wilson :

39. I agree.

Lord Justice Pill :

40. I also agree.