Town and country planning – Enforcement notice – Appeal – Enforcement notice issued in respect of failure of appellant’s block of flats to conform to relevant planning permission – Appeal – Planning upholding notice on appeal – Inspector’s decision omitting directions to give effect to intended extension of time for compliance – Local planning authority issuing notices under section 173A of Town and Country Planning Act 1990 to effect intended variation – Whether inspector erring in approach to interpretation of planning permission – Whether decision legally defective by reason of omission of directions – Whether error in section 773A notices rendering enforcement notice a nullity – Appeal dismissed
In 2005, the second respondent council granted planning permission for a development of nine flats on a site in London N13. The development as constructed by the appellant contained 11 flats and also exceeded a height limit in the 2005 permission. The second respondent council refused retrospective planning permission for the appellant’s building and issued an enforcement notice requiring part demolition to bring it into line with the 2005 permission.
The appellant’s appeals against both the refusal of planning permission and the enforcement notice were dismissed by the first respondent’s planning inspector. The inspector rejected the appellant’s argument that the 11 flats as built were similar in scale and height to the building approved in 2005. In doing so, she found that the 2005 permission allowed a ridge height of only 9.5m, rather than the figure of 10.5m for which the appellant contended. She noted that two versions existed of the numbered drawing to which the permission referred, each showing a different ridge height, but she found that the correct measurement was that shown in the drawing held by the second respondents, and referred to in the report of the second respondents’ planning committee, rather than that shown on the appellant’s drawing, which was a revised version stamped “permission granted subject to conditions”.
In light of a concession by the second respondents, the inspector found that it was appropriate to increase the period for compliance with the enforcement notice from three to six months; however, she omitted to include that variation in the directions contained in her decision.
The appellant brought proceedings under sections 288 And 289 of the Town and Country Planning Act 1990 to challenge the inspector’s decisions. In an attempt to narrow the issues, the second respondents issued a notice purporting to extend the period for compliance with the notice to six months, pursuant to their power under section 173A of the 1990 Act. However, the notice contained an error and the second respondents then served a further notice under section 173A stating that the earlier notice was of no effect and purporting to make the relevant variation to the enforcement notice.
In addition to challenging the inspector’s finding on the height limit in the 2005 permission, the appellant contended that the error in the first section 173A notice had the effect that, contrary to section 173(9) of the 1990 Act, the enforcement notice did not specify a compliance period which commenced on the date on which that notice took effect, with the result that the enforcement notice was rendered a nullity. Those contentions were rejected in the court below: see [2012] EWHC 2686 (Admin); [2012] PLSCS 206. The appellant appealed. It also sought permission for judicial review to resolve the issue relating to the section 173A notices.
Held: The appeal was dismissed.
(1) The inspector had been entitled to have regard to extrinsic evidence to resolve the uncertainty as to the permitted ridge height under the 2005 permission. Where it was not disputed that a drawing had been incorporated into the grant of detailed planning permission in 2005, different versions of the drawing had been produced by the appellant and the second respondents respectively at the inquiry. In those circumstances, the inspector had to resolve the factual issue of which drawing was the one referred to in the planning permission. Extrinsic evidence was admissible to resolve that factual issue. There was no question of the inspector using extrinsic evidence to interpret the planning permission; instead, she was simply ascertaining which of the two drawings was the one to which the planning permission referred. It was established that extrinsic evidence was admissible to identify the plans approved by a detailed planning permission if that permission did not identify the plans that had been approved. There was no difference in principle in admitting extrinsic evidence to identify which of two different plans with the same number was the approved plan with that number. Having carefully considered all the evidence, the inspector was entitled to prefer the version of the drawing produced by the second respondents, which corresponded with the dimensions referred to in the committee report: Barnett v Secretary of State for Communities and Local Government [2008] EWHC 1601 (Admin); [2009] 1 P&CR 24; [2008] PLSCS 176 applied.
(2) Reading the inspector’s decision as a whole and in a common sense way, she had decided to vary the notice to accord with the second respondents’ concession as to the time for compliance but had then, contrary to section 176(2A) of the 1990 Act, failed to give the directions necessary to give effect to her decision. Her failure to do so amounted to an error of law.
(3) An appeal under section 289 of the 1990 Act was an appeal on a point of law against the decision of the first respondent by his inspector. Since the second respondents’ admittedly erroneous exercise of their powers under section 173A had occurred after the inspector had made her decision, it could not, whatever its legal implications, affect the issue as to the lawfulness of the inspector’s decision. However, if the effect of the second respondents’ first section 173A notice was to render the enforcement notice a nullity, then the error of law by the inspector would be purely academic and it would be inappropriate to remit the enforcement notice appeal for reconsideration under section 289(5). The court therefore gave permission for judicial review on that issue, notwithstanding that the application for permission was well out of time.
(4) The 1990 Act conferred a much broader power to correct errors on an appeal against an enforcement notice than had been conferred by the earlier legislation; the stricter approach to nullity which had previously been adopted should therefore be confined to those cases where the failure to comply with the statutory requirements in section 173 was apparent on the face of the enforcement notice itself: Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 distinguished. The relevant defect in the instant case was that the six-month period for compliance would begin before the enforcement notice had taken effect because the appeal to the High Court was still ongoing. Even assuming that it was permissible to look at both the enforcement notice and the first section 173A notice in order to ascertain whether there was an error on the face of the enforcement notice as varied, the legal flaw introduced by the variation notice was not apparent on the face of those documents, but could only be ascertained by reference to the extrinsic evidence as to the progress of the appeal proceedings. Accordingly, even if the first variation notice was effective to vary the enforcement notice, it did not render the enforcement notice a nullity.
Moreover, a local planning authority that erroneously issued a notice which failed to achieve its desired statutory purpose should, unless there was a very good reason to the contrary, to be able to withdraw that defective notice and replace it with an effective one as soon as it recognised its error, without having to wait for judicial review proceedings to be commenced to quash their admittedly erroneous first decision. Further, the statutory power under section 173A was a power to withdraw or to waive or vary an existing enforcement notice. There was no power under section 173A to render an existing valid enforcement notice a nullity. The second respondents had purported to vary the enforcement notice to relax one of its requirements. Rendering a valid enforcement notice a nullity could not sensibly be described as a relaxation of one of its requirements and a notice which did that was simply outside the scope of the local planning authority’s powers under section 173A. Whichever approach was taken, the end result was therefore that there was a legally defective variation notice under section 173A which the second respondent had power to, and did, withdraw and correct before the section 289 appeal was decided. The further variation notice issued by the second respondents was effective to overcome the consequences of the only error in the inspector’s decision and it followed that the section 289 appeal should be dismissed.
David Elvin QC (instructed by Kingsley Smith LLP) appeared for the appellant; Richard Honey (instructed by the Treasury Solicitor) appeared for the first respondent; Stephen Hockman QC (instructed by the legal department of Enfield London Borough Council) appeared for the second respondents.
Sally Dobson, barrister
Read a transcript of Koumis v Secretary of State for Communities and Local Government here