In Miaris v Secretary of State for Communities and Local Government [2016] EWCA Civ 75; [2016] PLSCS 39 the Court of Appeal has confirmed the scope of appeals against “over enforcement” where no appeal on the planning merits of granting permission has been brought. The local planning authority enforced against unlawful material change of use (from restaurant to a mixed-use of restaurant, drinking establishment and nightclub). The enforcement notice required the use of the restaurant as a drinking establishment (as well as the use as a nightclub and allowing DJs to appear) to cease. The appellant did not dispute the enforcement in respect of the nightclub use but appealed under ground (f) of section 174(2) of the Town and Country Planning Act 1990 – that the steps required by the enforcement notice exceeded what was necessary to remedy any “injury to amenity”. She did not appeal on ground (a) – that planning permission ought to be granted on the merits.
The purposes of enforcement and the steps to be taken to comply must be set out in an enforcement notice (sections 173(3) and (4)). The first limb of the statutory purposes is remedying the breach by making any development comply with the terms of any planning permission, discontinuing use or restoring land to its condition before the breach took place. The second limb is remedying any “injury to amenity” being caused.
The appellant’s ground (f) appeal effectively sought to amend the enforcement notice to allow a capped amount of drinking establishment use. The inspector refused consider the general planning considerations raised by the appellant on the basis that they are more appropriate to a ground (a) appeal. The appellant challenged this as an error of law under section 289 of the Act and was allowed to appeal the resulting High Court judgment to the Court of Appeal.
The judgment upholds the inspector’s view that an “appeal under ground (f) cannot be turned into something else – in the absence of a ground (a) appeal – by arguing that the amenities of neighbours are not harmed” if the notice were to be varied. It is clear that a ground (f) appeal cannot succeed without a ground (a) appeal unless the steps required by the notice are driven solely by the second limb – remedying injury to amenity – not the first limb. The judgment confirms that a combined ground (a) and (f) appeal will often be able to achieve more than under ground (f) alone. It also illustrates the importance of clear drafting of enforcement notices both in terms of what is being enforced against and the stated purposes of enforcement.
Roy Pinnock is a partner in the planning and public law team at Dentons
