Where the recipient of a valid enforcement notice alleging a breach of planning control consisting of the carrying out of development without planning permission appeals to the secretary of state relying on section 174(1)(c) of the Town and Country Planning Act 1990 – “that those matters (if they occurred) do not constitute a breach of planning control” – an interesting question arises. Should the inspector, in looking at the position in terms of the fulfilment of that ground of appeal, assess the position as at the date of the issue of the enforcement notice or as at the date of the appeal hearing?
This was one of the questions before the court in Bury Metropolitan Borough Council v Secretary of State for Communities and Local Government [2011] EWHC 2192 (Admin); [2011] PLSCS 215. There, the local planning authority (LPA) had appealed, under section 289 of the Act, against the refusal of an inspector to uphold an enforcement notice alleging that the recipient had materially changed the use of his land without planning permission. Whether deemed planning permission existed depended, in part, on whether certain building operations were lawfully being carried out on the land at the time. The LPA contended that the inspector had erred in law, in that she had looked at the situation as at the date of the appeal hearing rather than as at the date of the issue of the enforcement notice.
The court held that the inspector had not erred. The judge pointed out that in section 174(1)(c) hearings, there were two possible grounds. Either there was no breach of planning control in the first place, or the breach had been removed, not because the enforcement notice had been complied with but because the underlying development was no longer unlawful in planning terms. Accordingly, it must follow that the appeal process is not limited to an assessment of whether the enforcement notice, when issued, was validly issued.
Furthermore, the language of section 174(1)(c) did not prevent it from covering the case where, by the time of the appeal hearing, there was no breach of planning control. This was because of the words in the present tense “do not constitute a breach of planning control”. Finally, the recipient in the instant case should be able to rely on matters occurring since the date of issue of the enforcement notice so as to show (and only to show) that, at the time of the hearing, the development did not amount to a breach of planning control.
John Martin is a freelance writer
