Planning permission — Condition requiring use to cease — Use continuing — Enforcement notice alleged material change of use rather than breach of condition — Inspector deciding notice defective — Whether notice capable of correction — Matter remitted to Secretary of State
In September 1985 planning permission was granted to the applicants to use premises at 29 Broomfield Road, London E14, as a waste skip transfer station. The permission was subject to a condition that the use be discontinued by August 1987. In September 1987 the applicants’ application for planning permission to continue the use was refused by the respondent local planning authority on grounds of the effect on local amenities and policies.
The use continued without the benefit of planning permission and in September 1987 the respondents issued an enforcement notice alleging a material change of use without planning permission; in fact the allegation should have been a breach of a condition in a planning permission. Following an appeal by the applicants, the inspector found that the notice was so defective as to be invalid and that he could not exercise the powers of correction in section 88A of the Town and Country Planning Act 1971. Accordingly he allowed the appeal without considering the planning merits. The applicants moved for judicial review and certiorari to quash the decision on the grounds that it-was wrong in law.
Held The decision of the Secretary of State for the Environment, by his inspector, was quashed and the matter remitted for further consideration in the light of the judgment.
The early decisions of the courts showed that enforcement notices must be clear as to the alleged breach of planning control; a breach of a condition, or the carrying out of development without planning permission, must be clearly specified. But the introduction of section 88A to the 1971 Act by the Local Government and Planning (Amendment) Act 1981, and the decisions in more recent cases, show that the law has progressed in this field. Under section 88A the Secretary of State can now correct any defect “if he is satisfied that the correction or variation can be made without injustice to the appellant or to the local planning authority”. Where an enforcement notice alleges a material change of use, rather than a breach of a planning condition, the Secretary of State may exercise his discretion to correct the defect in the notice.
The view of Lord Denning MR in Miller-Mead v Minister of Housing and Local Government [1963]2 QB 196, that a correction that did not go to the substance of the matter, and which could be corrected without injustice, was now the law. This was a case where the inspector should have considered whether a correction could be made without injustice to the parties.
Epping Forest District Council v Matthews
[1987] JPL 132 considered.
Hon Hugh Donovan (instructed by Hamlin Slowe) appeared for the applicants; and Christopher Katkowski (instructed by Treasury Solicitor) appeared for the second respondent, the Secretary of State for the Environment. The first respondent did not appear and was not represented.
