Town and country planning – Enforcement notice – Appeal – Section 174(2)(a) and (f) of Town and Country Planning Act 1990 – Appellants carrying out extensive development works to cottage – Second respondent council issuing enforcement notice alleging breach of planning control by construction of new dwelling and requiring demolition – Notice upheld by first respondent’s planning inspector – Whether inspector failing properly to consider grant of planning permission for alternative schemes – Appeal dismissed
The appellants owned an Arts and Crafts style cottage in Blackheath, Surrey. The property was in the green belt and also fell within the Surrey Hills area of outstanding natural beauty. In 2011, the second respondent council issued certificates of lawful development for a single-storey rear extension and a two-storey front extension to the property. The appellants began extensive works to the building which did not correspond to the certificates. The second respondents issued an enforcement notice alleging a breach of planning control at the property by the erection of a new dwelling without planning permission. The notice required the demolition of the new dwelling and the reinstatement of the land to specified levels.
The appellants appealed against the notice on several of the grounds in section 174(2) of the Town and Country Planning Act 1990, including ground (a), that planning permission should be granted for the development enforced against, and ground (f), that the steps required by the notice went beyond what was necessary to remedy the breach of planning control.
The first respondent’s planning inspector dismissed the appeal save for extending the period for compliance from six to nine months. He found that the building was inappropriate development in the green belt for which permission should not be granted. Although he considered proposals for three modified development proposals put forward by the appellants, he took the view that they were materially different forms of development from that enforced against; accordingly, it was debateable whether he was entitled to grant permission for them on the ground (a) appeal and, even if he was, it was not practical to do so given the integrated nature of the development and the lack of a clear divide between the parts which were acceptable and those which were not.
He considered that the ground (f) appeal could not succeed in terms of substituting lesser steps but that, even that course could in principle be considered, there was no realistically achievable or obvious solution that would overcome the harm that he had identified.
The appellants appealed under section 289 of the 1990 Act, contending that the inspector had erred in law in his consideration of alternative schemes. That contention was rejected in the court below: see [2015] EWHC 1197 (Admin). The appellants appealed.
Held: The appeal was dismissed.
(1) The inspector had correctly identified the question that he had to decide when dealing with the ground (a) appeal and had recognised the parameters of his power to grant planning permission on that ground. Section 174(2)(a) required him to focus on the “breaches of planning control which may be constituted by the matters stated in the notice”. The deemed application for planning permission which arose on the ground (a) appeal, by virtue of section 177, was therefore for the dwelling as built, on the date when the notice was issued. While it was possible to grant permission for the whole, or any part, of the development constituting the breach of planning control, the inspector had recognised that it was not possible to grant planning permission for some alternative form of development that differed from the alleged breach. He had correctly acknowledged that his powers were circumscribed by the allegation of the breach of planning control in the enforcement notice and that he could not consider alternative proposals that fell outside the scope of the notice: Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744; 2007] PLSCS 1 considered; Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432; [2015] EGLR 10 applied.
The inspector had not fallen into the error of discounting alternative proposals that fell within the scope of the notice, as a part of the matters stated in it as constituting a breach of planning control, solely because they were materially different from the development enforced against. He had been entitled to make the findings that he did in respect of the three alternative schemes proposed by the appellants. His conclusion that it was questionable whether he was entitled in law to substitute those schemes for consideration on ground (a) went to the question of whether any of the alternative schemes could properly be regarded as falling within the scope of the matters stated in the enforcement notice as constituting a breach of planning control. Even if they could, there were no grounds for interfering with the inspector’s further findings that no part or parts of the building were functionally and physically severable and that it was not possible to identify part or parts of the building that were acceptable. Accordingly, there was no error in the inspector’s decision on ground (a): Richmond upon Thames London Borough Council v Secretary of State for the Environment (1972) 224 EG 1555 considered; Exmouth Marina Ltd v First Secretary of State [2004] EWHC 3166 (Admin); [2006] JPL 204; [2005] 3 PLR 1 distinguished.
(2) Nor had the inspector erred in relation to ground (f). He had properly considered that the purpose of issuing the notice was to remedy the breach of planning control and that there could be no success on ground (f) in terms of substituting lesser steps: Tapecrown and Miaris v Secretary of State for Communities and Local Government [2016] EWCA Civ 75; [2016] EGLR 25 applied.
Further, the inspector had correctly found that, even on the assumption that he had to consider lesser steps that were less costly or disruptive, those steps still needed to amount to a realistic and obvious alternative which was acceptable. He had been entitled to conclude that it would be neither acceptable nor appropriate to substitute lesser steps or requirements for those set out in the enforcement notice.
(3) The inspector had properly considered all the alternative schemes put forward. In doing so, he had been fully aware of the statutory powers available to him and acted in accordance with them. He had not failed to undertake a sufficient assessment of the alternative proposals on their planning merits.
Richard Turney (instructed by Mishcon De Reya LLP) appeared for the appellants; Ryan Kohli (instructed by the Government Legal Department) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
