Development — Breach of planning control — Planning permission – Defendant council issuing enforcement notice requiring claimant to remove unauthorised extension to property — Defendants subsquently granting planning permission for larger development incorporating part of unauthorised extension – Development failing to proceed — Defendants deciding to act on enforcement notice – Claimant applying for judicial review — Whether previous enforcement notice remaining valid following grant of planning permission — Application granted
The claimant had erected a three-storey side and rear extension to his property in breach of planning control. The defendant planning authority issued an enforcement notice requiring its removal. The claimant applied for planning permission for a larger three-storey development that would subsume the walls of the unauthorised extension and span adjacent properties. Planning permission was granted but the proposed development did not take place.
The planning authority compulsorily acquired the adjacent properties for redevelopment. Following the demolition of the adjacent buildings, the flank wall of the unauthorised extension had to be buttressed, which prevented the development of the compulsorily purchased land. The defendants therefore decided to exercise their powers, under sections 178 and 179 of the Town and Country Planning Act 1990, to enable them to carry out the works required by the enforcement notice in respect of the unauthorised extension to the claimant’s property.
The claimant applied for judicial review of that decision, contending that the extension had, at least in part, been retrospectively permitted by the later grant of planning permission and, in any event, section 180 of the 1990 Act rendered the enforcement notice of no effect against the part of the extension that was compatible with the development that had been approved. Accordingly, the defendants’ decision to secure unqualified compliance with the enforcement notice was unlawful. The claimant’s contentions were supported by an interested party.
Held: The application was granted.
Section 180 of the 1990 Act protected from enforcement development which was the subject of an extant and valid enforcement notice, if and to the extent that the retention of that development was not inconsistent with a subsequent grant of planning permission. The statutory language was clear. It cancelled, not merely suspended, the effect of an enforcement notice to no greater and no lesser extent than the notice was inconsistent with a subsequent grant of planning permission. The notice ceased to have effect so far as it was inconsistent with that permission.
The main question was whether the permission and the enforcement notice shared common elements. If fabric formed part of that which the planning permission approved, the enforcement notice could not thereafter be relied on to attack that much of the development. Conversely, however, the enforcement notice continued to be effective against so much of the fabric as was not approved by the planning permission: Havering London Borough Council v Secretary of State for the Environment (1983) 45 P&CR 258 applied.
In the instant case, there were factors pointing to the conclusion that the planning permission partly cancelled the effect of the enforcement notice. In the first place, it was significant that the defendants had entertained and determined the application for planning permission on the explicit basis that the proposal it contained incorporated part of the unauthorised extension that had previously been the subject of enforcement action. Second, parts of the development that had been attacked by the enforcement notice that were physically subsumed in the development for which the defendants had granted planning permission. Third, the grant of planning permission was not undermined by the fact that permission had been granted for a larger extension. To the extent that the structure was common to the permission and the enforcement notice, section 180 prevented the enforcement notice from taking effect: R v Chichester Justices, ex parte Chichester District Council [1990] 3 PLR 36 applied, Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22; [2003] 1 PLR 121, FG Whitley & Sons Co Ltd v Secretary of State for Wales [1992] 3 PLR 72 and Carter Commercial Developments Ltd (in administration) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1200 (Admin); [2003] JPL 35 considered.
The defendants’ resolution under challenge authorised direct action against the entire extension. The defendants had not asked themselves whether, in view of the grant of planning permission, the full rigour of the enforcement notice requirements would have to be tempered to take account of the implications of that grant. That failure vitiated their decision to proceed with the action under sections 178 and 179 of the 1990 Act. The question of whether the enforcement notice was inconsistent with the planning permission and the extent to which it was were matters of fact and degree for the defendants as the local planning authority to determine, subject to review by the court on normal public law principles. The material before the court demonstrated that such an exercise was required in this case. The action under sections 178 and 179 authorised by the defendants’ resolution would have had serious consequences for those affected. It was therefore important that the practical implications of section 180 for such action were properly understood and carefully considered. That had not happened here and the defendants’ decision could not therefore be allowed to stand.
Reuben Taylor (instructed by Berwin Leighton Paisner) appeared for the claimant; Jonathan Ferris (instructed by ASB Law, of Maidstone) appeared for the defendants; Rembert de Mello appeared for the interested party.
Eileen O’Grady, barrister
