Town and country planning – Planning appeal – Enforcement notice – Building not conforming 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 Town and Country Planning Act 1990 – 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 – Inspector’s decision quashed – Appeal dismissed
The respondent’s premises on Stoke Newington High Street, London N16, 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 ground-floor retail unit and six flats on two upper floors. The permission was to lapse if development did not commence within five years expiring 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 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 respondent appealed under section 174(2)(a) and (f) of the Town and Country Planning Act 1990. By his ground (a) appeal, he sought the grant of permission 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 approved in 2005 was still acceptable in planning terms and the building could be modified to accord with it.
Dismissing the appeal, the appellant’s planning 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 under ground (a). 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 inspector’s decision was subsequently quashed in relation to ground (f). The judge accepted the respondent’s contention 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 of the 2005 consent and then to vary the enforcement notice to require partial demolition and remodelling to conform to that consent. He rejected the appellants’ contention that no such remedy could be granted where the appellant had not sought a permission in those terms in his case on ground (a): see [2013] EWHC 2084 (Admin); [2013] PLSCS 222. The appellant appealed.
Held: The appeal was dismissed.
A planning inspector had wide powers to decide whether there was any solution, short of a complete remedy of the breach, which was acceptable in planning and amenity terms. If there was, he should be prepared to modify the requirements of the enforcement notice and grant permission subject to conditions. His primary task was to consider the proposals that had been put before him, and, while he was free to suggest alternatives it was not his duty to search around for solutions. An appellant relying on ground (f) should therefore state his fallback position. However, if there was an obvious alternative, then the inspector should consider it: Taylor & Sons (Farms) Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1254; [2002] PLCR 11; [2002] 1 PLR 16 and Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744; [2007] 2 P&CR 7; [2007] PLSCS 1 and Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202; [2013] JPL 192; [2012] 3 EGLR 91; [2012] 46 EG 122 applied.
The same principles applied when deciding whether an inspector should consider under ground (a) a point raised under ground (f). The power under section 177(1) of the 1990 Act to grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control was linked to an appeal under ground (a) rather than ground (f). However, the respondent’s appeal included express reliance on ground (a) and he would be deemed in any event to have made an application for planning permission by virtue of section 177(5), as it existed at the material time. Notwithstanding that his ground (a) appeal sought planning permission only in respect of the development as built, which constituted the whole of the matters stated in the notice as constituting the breach of planning control, the power under section 177(1) was to grant planning permission in relation to the whole or any part of those matters. In principle, therefore, planning permission could have been granted for the 2005 scheme if the differences between it and the development as built were such that a development in accordance with the 2005 scheme could be regarded as a “part” of the development as built. That was a matter of planning judgment for the inspector, but it was a judgment that he had not made because of his failure to consider the possibility of granting planning permission for the 2005 scheme. It was possible that, had he considered that option, he might reasonably have concluded that the 2005 scheme was to be regarded as part of the development as built and that he had power under section 177(1) to grant planning permission for it.
The respondent was not contending that the result he sought could have been achieved under ground (f) alone; instead his case was that the representations that he made on ground (f) should have caused the inspector to consider the obvious alternative of granting planning permission for the 2005 scheme under ground (a), even though the actual application for permission under ground (a) related to the development as built. His essential point was that all that was needed to make the development acceptable in planning terms was for it to be modified to comply with the scheme approved in 2005. That should have led the inspector to consider the grant of planning permission for the 2005 scheme under ground (a), with a consequential variation of the enforcement notice under ground (f) in respect of the steps required to be taken to remedy the breach of planning control. He had erred in law in failing to consider that possibility as an obvious alternative: Secretary of State for the Environment, Transport and the Regions v Wyatt Brothers (Oxford) Ltd [2001] EWCA Civ 1560; [2002] PLCR 18 distinguished.
Stephen Whale (instructed by the Treasury Solicitor) appeared for the appellant; Andrew Fraser-Urquhart (instructed by Wedlake Bell LLP) appeared for the respondent; the local planning authority did not appear and were not represented.
Sally Dobson, barrister
