Planning permission – Dwelling house – Multiple occupation – Appellant taking steps to increase number of units in houses of multiple occupation – Appellant not applying for planning permission — Building works taking place outside permitted specifications – Local authority issuing enforcement notices – Inspector amending defects in notices — Appellant challenging amended notices — Whether inspector erring in law in failing to consider all grounds of appeal — Appeal allowed
The appellant owned two adjacent properties that were separate planning units but were used as houses in multiple occupation, comprising bedsits and flats. He obtained planning permission to extend the rear of each property. However, the extensions as built exceeded the dimensions shown on the permitted drawings. They accommodated 10 units in each property for which planning permission had not been granted. The appellant also built a dormer extension to one of the properties for which he did not have planning permission.
The second respondent local planning authority issued three enforcement notices against the appellant requiring him to reduce the units in each property to the permitted number and to reduce the size of the extensions to their permitted dimensions. The appellant appealed against the notices, including a ground based on section 174(1)(a) of the Town and Country Planning Act 1990, which in effect constituted an application for planning permission in respect of the breaches. Prior to the service of the enforcement notices, the appellant had sought to regularise the alleged breaches of planning control by applying for planning permission for the additional bedsits and for the rear extensions. Those applications were refused and the appellant also appealed against those refusals.
A planning inspector held an inquiry in which the appellant challenged the validity of the enforcement notices on the basis that they were unclear in respect of the bedsits and what he was required to do to remedy the problem. Those challenges were upheld in part and the inspector deleted from the notices any reference to the “use” of the buildings for the purposes of bedsits. The notices were left intact in respect of the suggestion of alleged “operational development”. The inspector found that certain aspects of the constructed accommodation offended planning policy so that the appeals concerning the affected units would be dismissed.
The appellant appealed on the grounds, inter alia, that by taking the course he did in relation to the defects in the enforcement notices, the inspector had failed or declined to address certain grounds of appeal that the appellant was entitled to have considered.
Held: The appeal was allowed.
In accordance with section 176 of the 1990 Act, on an appeal under section 174, the secretary of state might correct a defect error or misdescription in an enforcement notice or vary its terms if the correction or variation would not cause injustice to an appellant or the local authority. Where the secretary of state determined to allow the appeal, he might quash the notice.
Too restrictive an interpretation should not be imposed on the word “variation”. A variation could be achieved by deletion. However, what constituted a variation would always be a matter of fact and degree and would depend on the facts of the case. What governed the issue was whether any change or alteration to the notice would cause injustice to any party. Although section 176 might well be interpreted by asking whether: (i) what was proposed was a correction or variation; and (ii) it would cause an injustice, in many cases, the second issue would determine or at least inform significantly the first: Wealden District Council v Secretary of State for the Environment [1983] JPL 234 applied.
In the instant case, if forced to decide, the court would hold that what the inspector did was within the expression “variation”. Deleting something involved a variation of what was there before. However, the more significant issue was the qualitative judgment of whether it could lead to an injustice.
On the evidence, the appellant had been entitled to complain about the enforcement notices but, having done so successfully, he had found himself deprived of consideration by the inspector of some of his primary grounds of appeal. The inspector had not intended that the appellant should be deprived of that opportunity and saw the course that he took as the logical extension of his decision on the enforcement notices. However, the result had not been just, embracing as it did the need to deal with issues expeditiously and economically. The statutory scheme within which those matters were considered should not inhibit that objective. Although it was possible that all those matters could have been addressed in other ways, for example, by the appellant making fresh applications and/or fresh enforcement notices being issued, it seemed to be unfair and burdensome on the appellant in terms of time, expense and delay to deal with matters in that way given that everything relevant had been before the inspector.
Accordingly, the matter would be remitted to the first respondent for redetermination.
Sarah Clover (instructed by John Hughes Law Practice Ltd, of Birmingham) appeared for the appellant; Peter Goatley (instructed by the Treasury Solicitor) appeared for the respondents.
Eileen O’Grady, barrister
