Ermis v Secretary of State for Housing, Communities and Local Government: inspector's "precise and unambiguous" test quashed

An inspector who treated precision and unambiguity as free-standing hurdles, rather than as a measure of whether evidence discharges the civil standard, has had his decision remitted for redetermination.

In Ermis v Secretary of State for Housing, Communities and Local Government [2026] EWHC 1734 (Admin), handed down on 10 July 2026, Jonathan Moffett KC, sitting as a Deputy High Court Judge, allowed an appeal under section 289 of the Town and Country Planning Act 1990 against the dismissal of an enforcement notice appeal.

Four years, five tenancy agreements

Lambeth issued an enforcement notice in December 2023 against a roof-space flat at Coldharbour Lane, Camberwell, created without permission by the appellant's former husband. She acquired the property in a divorce settlement and pursued a ground (d) appeal, contending that the four-year period under section 171B(2) had expired.

Her case rested on a sequence of assured shorthold tenancies. It did not run smoothly. A first statutory declaration proved erroneous and had to be corrected by a second. Two of the agreements named an adjacent block, Kenbury Mansions, rather than the property. One was unsigned. One named no landlord. An eighteen-month gap between December 2020 and July 2022 was covered only by assertions that a six-month tenancy had rolled over.

The inspector dismissed the ground (d) appeal, concluding that the evidence did not meet "the tests of precision and ambiguity".

Two stages, one omitted

The Planning Practice Guidance provides that, where the authority has no contradicting evidence, an applicant's evidence should be accepted provided it is sufficiently precise and unambiguous to make out the claim on the balance of probabilities. The adverb matters. It acknowledges that a burden may be discharged even where the evidence is not free of imprecision.

The deputy judge held that the inspector's formulations at paragraphs 3 and 28 of the decision letter materially misstated that guidance, giving rise to a substantial doubt as to whether precision and unambiguity had been elevated into an objective standard to be met in its own right. The inspector was entitled to weigh how precise the evidence was. He then had to ask whether it proved continuous residential use. Whether he took that second step is not apparent.

That doubt was compounded by the structure of the reasoning. Across four paragraphs dealing with successive occupation periods, the inspector recited evidence pointing each way without expressing a conclusion on any of them, save to describe one arrangement as "odd". Since the appellant's case had been advanced by reference to discrete periods tied to particular agreements, it was incumbent on the inspector to identify at least one period in which he was unpersuaded, and to explain why. He did not.

An agreement that rolled itself over

The second ground disclosed an error of law. The inspector regarded the absence of written agreements evidencing the rolling over of a 2020 tenancy as telling against occupation. But clause 1.6.1 of that agreement provided for continuation as a monthly contractual periodic tenancy without further writing, as does section 5 of the Housing Act 1988. Counsel for the Secretary of State accepted that it was unclear whether the inspector had appreciated this.

The Simplex argument, that the outcome would inevitably have been the same, would have been rejected. The misapprehension may have coloured the inspector's view of the former husband's credibility, and so his treatment of the earlier occupation period.

An argument based on Impey and Welwyn Hatfield, to the effect that physical conversion may itself constitute a material change of use once the flat became habitable, was left undecided. It had not been advanced before the inspector and so was not a principal important controversial issue requiring reasons.

The appeal was remitted for redetermination, with costs of £35,000 against the Secretary of State.