Town and country planning – Planning appeal – Enforcement notice – Town and Country Planning Act 1990 – Building failing to conform to terms of relevant planning permission – Permission lapsing – Enforcement notice requiring breach of planning control to be remedied by demolition of entire building – Appeal under section 174(2)(a) and (f) of 1990 Act – Grounds of appeal alleging over-enforcement and seeking permission for retention of building as built – Sections 177(1) and 176(1)(b) of 1990 Act – Whether planning inspector required to consider grant of planning permission in terms of lapsed permission and variation of enforcement notice to require modification of building accordingly – Appeal allowed
The appellant owned premises on Stoke Newington High Street, London N16, which were the subject of a 2005 planning permission for the demolition of the existing property and its replacement with a three-storey building containing a retail unit on the ground floor and six flats on two upper floors. The permission was to lapse if development did not commence within five years; that period expired in June 2010. Although construction work was completed in 2009, the development as built differed in material respects from that permitted by the 2005 consent, having a different style of roof and an additional storey. The local planning authority refused to grant retrospective planning permission for that development and, in September 2010, issued an enforcement notice requiring the breach of planning control to be remedied by the demolition of the entire building and the restoration of the relevant parts of the old building to their previous position.
The appellant appealed on the grounds in section 174(2)(a) and (f) of the Town and Country Planning Act 1990. By his appeal on ground (a), he contended that permission should be granted for the development as built. On ground (f), he contended that the steps required by the enforcement notice exceeded what was necessary to remedy the breach, since the scheme that had been approved in 2005 was still acceptable in planning terms and the building could be modified to accord with it.
The appeal was dismissed by the respondent’s planning inspector. On ground (a), the inspector found that the building as erected did not meet the requirements of the local development plan and that planning permission should not be granted for it. With regard to ground (f), he found that the breach of planning control could be remedied only by demolishing the whole building because, the 2005 permission having expired, there was no “fallback position” that could be implemented.
The appellant appealed against the inspector’s decision on ground (f). He contended that the inspector should have considered exercising his powers under section 177(1) and 176(1)(b) of the 1990 Act, respectively, to grant a planning permission in terms mirroring those of the 2005 consent and then to vary the enforcement notice to require partial demolition and remodelling to conform to that consent. The respondent contended that no such remedy could be granted where the appellant had not asked for a permission in those terms in his case on ground (a).
Held: The appeal was allowed.
The statutory provisions, taken as a whole, were intended to enable an inspector to consider the merits of any fallback proposal properly put forward by an appellant and to direct appropriate remedial action short of full demolition where appropriate. Although an inspector could not be criticised for failing to address his mind to a substantive submission that was never put to him, the appellant had clearly set out his fallback position in his submissions under section 174(2)(f), namely that, in order to make the development acceptable on planning grounds, all that was needed was for the building to be modified to comply with the design of the scheme approved in 2005: Taylor & Sons (Farms) Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1254; [2002] 1 PLR 16 distinguished.
Moreover, even where an appellant had failed to articulate a fallback position with sufficient clarity as part of his substantive case, an inspector should none the less consider any “obvious alternative” to full demolition that would overcome the planning difficulties. If there was a readily identifiable alternative to complete demolition, which would have presented itself to any reasonable inspector from the submissions that were advanced and any site visit, and which could remedy both the planning and amenity objections to the development, then the inspector should consider that option and should be prepared both to vary the enforcement notice and to grant planning permission, subject to any requirements of procedural fairness that might arise on the facts of the particular case: Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744; [2007] PLSCS 1 applied.
Had the 2005 permission been extant at the time of the inspector’s decision, the inspector could have exercised his power under section 176(1)(b) to vary the enforcement notice so that, instead of requiring complete demolition of the building, the notice required the building to be reconfigured to comply with the 2005 permission. Since that was a power open to him on the facts, and was exactly what the appellant sought in his appeal under section 174(2)(f), the inspector would have been obliged at least to address his mind to that possibility and whether it could be achieved without injustice to either party. There was no additional requirement, in a case where a prior consent had lapsed, for the appellant to spell out his fallback position in his submissions on ground (a); it was sufficient that he had adequately spelled it out in relation to ground (f): Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202; [2012] 3 EGLR 91; [2012] 46 EG 122 applied. The inspector in the instant case had overlooked an obvious alternative that could have remedied the breach of planning control, namely the possibility of varying the order as requested by the appellant in relation to ground (f) and, at the same time, granting retrospective planning consent pursuant to his power, under section 177, to grant consent in respect of part of the matters that were the subject of the notice. He had been obliged at least to address his mind to that possible course, even if he ultimately rejected it. He had erred in law in failing to do so.
Andrew Fraser-Urquhart (instructed by Wedlake Bell LLP) appeared for the appellant; Katrina Yates (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
