Town and country planning – Enforcement notice – Appeal – Appellant appealing against decision to uphold enforcement notice – Whether requirements in notice exceeding steps necessary to remedy injury to amenity caused by breach of planning control – Whether permissible to allow appeal on ground (f) – Appeal dismissed
The second respondent council issued an enforcement notice alleging a breach of planning control consisting of a material change of use of the appellant’s premises on North Parade, Bath, from their lawful use as a restaurant to a mixed use of restaurant, drinking establishment and night club. The second respondents issued the notice on the grounds that the change of use had resulted in an increase in pedestrian movements, noise, vibration and disturbance, with a detrimental effect on the wellbeing and amenity of local residents and the environment, contrary to local and national planning policies.
The appellant appealed under section 174(2) of the Town and Country Planning Act 1990. He relied solely on ground (f), namely that the steps required to comply with the requirements of the notice were excessive. An inspector appointed by the first respondent secretary of state dismissed the appeal and upheld the enforcement notice.
The appellant challenged that decision by way of an appeal under section 289 of the Town and Country Planning Act 1990. The appeal raised a point of law of general application as to whether, in cases where planning permission was not sought on ground (a) for any of the matters constituting the breach of planning control to which the enforcement notice related, the secretary of state could still entertain a ground (f) appeal solely on the ground that any of the steps required by the notice exceeded what was necessary to remedy any injury to amenity caused by the breach. The appellant contended that any injury to amenity caused by his use of the premises could be remedied by imposing a requirement not to use the premises as a nightclub or drinking establishment for more than 60 non-dining customers, rather than banning all such use.
Held: The appeal was dismissed.
By section 173(3) and (4) of the 1990 Act, the steps required by an enforcement notice might be for the purpose of (a) remedying any breach of planning control or (b) remedying any injury to amenity constituted by the matters constituting the breach. The steps required in any one notice did not have to be limited to only one of those purposes and there was no requirement for an enforcement notice to state whether any particular step was required in reliance on section 174(a) or (b) or both. A specified step specified might in fact serve the purpose of both remedying a breach of planning control and of remedying any injury to amenity that it caused. However, it was possible that planning objections to any of the matters constituting the breach might remain even if any injury to amenity that it might cause was eliminated.
An appeal against an enforcement notice might be brought in reliance on ground (f) on the ground that any step specified in an enforcement notice exceeded what was necessary to remedy any injury to amenity caused by the relevant breach of planning control, rather than the breach itself. However, such an appeal could not be entertained where the objections which the step addressed were not limited to any injury to amenity, unless there was also an appeal on ground (a) that planning permission should be granted for any breach alleged in the notice. If there was no ground (a) appeal but the steps in issue on the ground (f) appeal related solely to remedying any injury to amenity caused by the breach of planning control, then the ground (f) appeal could be considered on its merits. Whether such an appeal could be brought therefore depended not on the particular paragraph in section 173(4) on which the local planning authority had relied when specifying the step in issue, but instead on the nature of the planning objection that the step sought to remedy.
It was not open to the appellant in the instant case to contend, in relation to ground (f), that the steps required by the enforcement notice exceeded what was necessary to remedy any injury to amenity. The appellant had not advanced any ground (a) appeal and the relevant steps, requiring the cessation of use of the premises as a drinking establishment, did not merely seek to remedy the injury to amenity that such a use had caused. It followed that the inspector had not erred in law in refusing to consider the merits of the appellant’s contentions in support of its ground (f) appeal: Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744; [2007] 2 P&CR 7, Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202; [2013] 3 EGLR 91, Mata v Secretary of State for Communities and Local Government [2012] EWHC 3473 (Admin) and Elmbridge Borough Council v Secretary of State for Communities and Local Government [2015] EWHC 1367 (Admin) considered.
Jonathan Wills (instructed by Horsey Lightly Fynn, of Bournemouth) appeared for the appellant; Estelle Dehon (instructed by the Treasury Solicitor) appeared for the first respondent; The second respondents did not appear and were not represented.
Eileen O’Grady, barrister
