Section 180 of the Town and Country Planning Act 1990 provides that where, after the service of a copy of an enforcement notice or a breach of condition notice, planning permission is granted for any development carried out before the grant of that permission, the notice will cease to have effect “so far as inconsistent with that permission”.
In R (on the application of Rapose) v Wandsworth London Borough Council [2010] EWHC 3126 (Admin), the court made the following observations:
(1) Section 180 is not activated by the implementation of the planning permission, but by its grant. (2) It does not stipulate that the site in respect of which planning permission is granted must be the same as the site in respect of which enforcement action has been taken. (3) The crucial words in section 180 are “so far as”. (4) If fabric forms part of what the planning permission approved, the enforcement action cannot thereafter be relied on to attack that much of the development. (5) The “full rigour” of the enforcement action has to be tempered to take account of the planning permission.
In Goremsandu v Secretary of State for Communities and Local Government [2015] EWHC 2194 (Admin), the claimant sought to challenge the decision of an inspector dismissing her appeal against the refusal of the local planning authority (“LPA”) to grant a lawful development certificate in respect of an extension to her bungalow. The size of the extension was such that it required planning permission, exceeding tolerances for permitted development within the cartilage of a dwelling house.
The extension was the subject of an enforcement notice requiring its total demolition. However, the LPA had subsequently granted planning permission for removal of a pitched roof over part of the extension and a reduction in its footprint where it projected beyond the building line.
The inspector had considered the effect of section 180, and had concluded that the enforcement notice remained effective as issued. Enforcing its requirements “would not be inconsistent with the later grant of planning permission, because of the substantial difference in form and size of what is enforced against and what received planning permission subsequently”.
The court held that the inspector had erred in his approach. If he had addressed the effect of section 180 in the proper manner, he would have been bound to conclude that the enforcement notice remained effective only to the extent of requiring the removal of the pitched roof and the reduction of the extension’s footprint. There was no rule that the enforcement notice must either be capable of being acted upon in full or not at all.
John Martin is a planning law consultant
