Development – Respondent local authority granting appellant developer conditional planning permission to develop land — Appellant breaching planning condition — Respondents issuing enforcement notice and obtaining injunction to restrain appellant from continuing breach — Whether judge erring in finding breach of planning control – Whether judge erring in conclusion that enforcement notice not null and void – Appeal allowed
The appellant property developer obtained planning permission to build 30 flats in the garden of his property. The permission was conditional on the respondent local authority approving a scheme of landscaping prior to commencement of the development. As part of that scheme, the appellant proposed that an area of the development site (the affected land) should be fenced off and planted with trees to create a secluded garden for the residents of the flats.
The respondents expressed concerns over the proposal. They issued an enforcement notice under section 171A(1)(b) of the Town and Country Planning Act 1990, alleging that the affected land had been enclosed within the extended garden of the appellant’s house, such a development did not have planning permission, deprived the flats of amenity land and necessitated alterations to boundary features.
On the appellant’s appeal, the inspector found that the enforcement notice was unclear. With the parties’ agreement, he amended it to allege non–compliance with the landscaping condition and included a requirement that the appellant should make the land “available for the enjoyment of residents”. However, the appellant continued to treat the land as part of his garden.
The respondents obtained an injunction, pursuant to section 187B of the 1990 Act, restraining the appellant from preventing the residents of the flats from enjoying the affected land: [2010] PLSCS 230.
The appellant appealed contending that the judge had erred, inter alia, by concluding that: (i) planning control had been breached; and (ii) the enforcement notice was not a nullity but was merely defective and could corrected.
Held: The appeal was allowed.
(1) The respondents had not suggested that planning control had been breached falling within section 171A(1)(a). They therefore had to establish that the appellant’s failure to make the land available to the residents of the flats was a failure to comply with a condition subject to which planning permission had been granted.
Although the respondents would have granted the planning permission on the reasonable assumption that the land would be made available to the residents of the flats as an amenity and that, in planning terms, such a use of the land would be desirable, the court could not accept that that was what was required by the revised landscaping condition. If the respondents had wanted to ensure that the land was laid out initially as an amenity area, and was thereafter available for the enjoyment of the residents of the flats, they could have imposed an appropriate condition. They could have, for example, prevented the flats from being occupied until the land had been laid out as an amenity area for the occupants and prohibited its use thereafter for any other purpose: see Circular 11/95: The use of conditions in planning permissions.
Since the revised condition did not require the land to be made available for the enjoyment of the residents of the flats, there had been no lack of compliance with that condition and planning control had not been breached.
(2) The lawfulness of the inspector’s decision to correct the enforcement notice had not been challenged in appropriate proceedings at the time and it was too late to do so in the instant proceedings. The distinction drawn in Miller-Mead v Minister of Housing and Local Government (1963) 18 EG 835 between invalidity, which could be corrected, and nullity was open to question because of the different statutory framework and the changing approach of the courts since that case was decided. However, that question would be reserved for further consideration in an appropriate case.
Harriet Townsend (instructed by Hewitsons LLP, of Cambridge) appeared for the appellant; Peter Harrison QC (instructed by the legal department of Norfolk County Council) appeared for the respondents.
Eileen O’Grady, barrister
