Section 176(1)(b) of the Town and Country Planning Act 1990 (“the Act”) empowers an inspector to vary an enforcement notice on appeal, if he is satisfied that to do so would not cause injustice to the appellant or the local planning authority (“LPA”). The decision in Elmbridge Borough Council v Secretary of State for Communities and Local Government [2015] EWHC 1367 (Admin) illustrates a limitation on that power. There, the Secretary of State had in 2008 granted planning permission on appeal to a developer for the demolition of existing buildings on the appeal site, and the construction of nine townhouses in their place. Condition 1 attached to the planning permission required the development to be commenced within three years from the date of the planning permission. In fact, the developer constructed ten townhouses on the site.
The LPA issued an enforcement notice alleging a breach of planning control consisting of the construction of ten townhouses “without planning permission”. The developer appealed to the secretary of state under section 174 of the Act on Ground (b) – that those matters had not occurred, and on Ground (f) – that the steps required were excessive. (It was the developer’s case that works carried out on the site had amounted to implementation of 2008 planning permission, within the time limit specified in Condition 1, and that the planning permission could be subsequently amended.) The developer did not appeal on Ground (a) – that planning permission ought to be granted. There was no deemed application for planning permission, and no planning application fee was paid.
The inspector concluded that the works that had been carried out were so different from those approved by the 2008 planning permission that they did not amount to implementation of the permission. That disposed of the Ground (b) appeal. However, in response to the Ground (f) appeal, he varied the terms of the enforcement notice so that it required the developer to make the building operations comply with the terms of the 2008 planning permission. The LPA appealed under section 289 of the Act.
The court quashed the inspector’s decision on Ground (f), holding that he had no power to vary the enforcement notice in that way. This was because there was no longer an effective planning permission in existence, the 2008 permission having become time expired. Furthermore, in the absence of the developer appealing on Ground (a) and there being an effective deemed application for planning permission the inspector could not take into account general planning considerations when determining the Ground (f) appeal.
John Martin is a planning law consultant
