Town and country planning – Enforcement notice – Appeal – Appellant challenging enforcement notice on ground that steps required exceeding those necessary to remedy injury to amenity – Appeal brought solely on ground (f) in section 174(2)(f) of Town and Country Planning Act 1990 – No ground (a) appeal seeking grant of planning permission for matters enforced against – Inspector upholding notice – Whether case based solely on remedying injury to amenity available on ground (f) appeal where no ground (a) appeal advanced – Appeal dismissed
In July 2013, 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 nightclub. The notice was issued 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. It required the cessation of use as a nightclub and as a drinking establishment for customers who were not dining in the restaurant and it prohibited performances by DJs in the premises.
The appellant appealed against the notice solely on the ground in section 174(2) of the Town and Country Planning Act 1990, namely that the steps required to comply with the requirements of the notice were excessive. He 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 and by limiting the number of non-dining customers to 60, while continuing to permit DJ performances. The appellant did not advance any appeal on ground (a) in section 174(2), namely that planning permission should be granted for any of the matters constituting the breach of planning control to which the enforcement notice related.
An inspector appointed by the first respondent secretary of state dismissed the appeal and upheld the enforcement notice. He found that the general planning considerations which the appellant had raised were not appropriate to a ground (f) appeal where there was no appeal on ground (a) and no deemed application for planning permission. He therefore declined to consider the parties’ representations on the planning merits.
The appellant challenged that decision by way of an appeal under section 289 of the 1990 Act. An issue arose as to whether, in a case where there was no ground (a) appeal, the inspector 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, rather than the breach itself. In the court below, the judge held that such a course was not open to the inspector: see [2015] EWHC 1564 (Admin); [2015] PLSCS 170. The appellant appealed.
Held: The appeal was dismissed.
The appellant’s real complaint was that the inspector did not consider the planning merits of his alternative proposal. What he was seeking to achieve by his appeal against the notice was not the approval of the use of the premises as a restaurant, drinking establishment and nightclub, which was the use enforced against, but approval instead for its mixed use as a restaurant and drinking establishment, or at least for use as a restaurant with a substantial ancillary use as a drinking establishment, subject to a degree of control on the number of non-dining drinkers. The inspector had correctly concluded that that outcome could not be achieved by means of an appeal on ground (f) in the absence of an appeal on ground (a) and a deemed application for planning permission.
An inspector’s power to allow an appeal on the second limb of ground (f), namely that the enforcement notice went further than was necessary to remedy the injury to amenity caused by the breach rather than the breach itself, was relatively narrow when he was not also given the opportunity of determining an appeal on ground (a). There was a substantial difference in scope between appeals on ground (a) and appeals on the second limb of ground (f). That difference had not been reduced by the changes to the statutory scheme introduced by the Localism Act 2011, including the amendment to section 177(5), the effect of which was that, in England, there was now no deemed application for planning permission unless an appeal had been made on ground (a). The legislative intent was to avoid the general planning merits of alternative proposals being assessed in an enforcement notice appeal when no appeal had been made on ground (a) and there was no deemed application for planning permission.
The requirements in an enforcement notice might, and often would, serve both the purpose of remedying a breach of planning control, which was the purpose in section 173(4)(a), and the purpose of remedying any injury to amenity, which was the purpose in section 173(4)(b). In many cases, planning objections to the development would remain even if any injury to amenity caused by it was eliminated. If an appeal could be considered on ground (f) alone, on the basis that a requirement in the enforcement notice exceeded what was necessary to remedy any injury to amenity, but if the planning objections addressed by that requirement were not limited to any injury to amenity, making the appeal good would not justify quashing or varying the notice.
Accordingly, an appeal on ground (f), on the basis that a requirement in the notice exceeded what was necessary to remedy any injury to amenity caused by the relevant breach of planning control, could be entertained in the absence of an appeal on ground (a) only if that requirement was addressed solely at remedying any injury to amenity.
The planning harm which the second respondents had identified in their reasons for issuing the notice were not concerned merely with injury to amenity but extended into the realm of other planning considerations. The inspector had been entitled to conclude that he could not take account of the general planning considerations raised in the appeal since they were more appropriate to an appeal on ground (a): Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432; [2015] EGLR 10 and Secretary of State for the Environment, Transport and the Regions v Wyatt Brothers (Oxford) Ltd [2001] EWCA Civ 1560; [2002] PLCR 18; [2001] PLSCS 229 applied.
Jonathan Wills (instructed by Horsey Lightly Flynn, of Bournemotuh) appeared for the appellant; Estelle Dehon (instructed by the Government Legal Department) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
Read a transcript of Miaris v Secretary of State for Communities and Local Government here
