Planning permission — Enforcement notice — Appellant using premises for variety of purposes — Planning authority issuing notices in unsuccessful attempt to identify all uses — Planning authority issuing further notice in wider terms — Authority taking no enforcement action against certain uses — High Court holding further notice not “second-bite” notice — Whether judge correct in upholding inspector’s finding of material change of use — Whether planning permission deemed to have been granted for uses unchallenged by authority — Appeal dismissed
The appellant owned a farm and outbuildings that were used for a variety of non-agricultural purposes. The second respondent planning authority had issued several enforcement notices alleging various breaches of planning control. The respondents subsequently served a further notice in different terms, alleging a material change of use. The appellant appealed. The inspector found that the enforcement notices addressed the various changes of use in a piecemeal fashion, targeting individual components of the mixed use rather than the mixed use itself, and that their vagueness meant that they could not be corrected without causing injustice, since they might have affected the interests of third parties who had not been similarly served. He therefore quashed those notices. However, after imposing some alterations and corrections, the inspector upheld the further notice, which appeared to deal with the same issues, on the basis that it was a valid “second bite” notice within the meaning of section 171B(4)(b) of the Town and Country Planning Act 1990.
The appellant appealed, under section 289 of the 1990 Act, against the inspector’s decision to uphold the further notice and challenged other matters under section 288. The lower court held that the further notice was not a “second-bite” notice, but it dismissed the other grounds of appeal ([2003] EWHC 2003 (Admin); [2004] 1 PLR 1). The claimant appealed, arguing that the inspector had been wrong to find a material change of use and that the further notice amounted to deliberate “under-enforcement”. Accordingly, planning permission should be deemed to have been granted pursuant to section 173(11) of the 1990 Act in respect of uses of the premises for which the planning authority could have taken enforcement action but had failed to do so.
Held: The appeal was dismissed.
It was open to the inspector to find that there had been a material change in the character of the use of the site for the reasons he gave and there were no grounds for criticism in principle of the inspector’s conclusions or the judge’s rejection of the appeal.
An over-technical and analytical approach to enforcement notices in cases like the present was inimical to the interests of justice. The case had been fully ventilated and examined at the inquiry and were not unjust in the inspector’s conclusions.
A precondition for the application of section 173(11) was that the activity in question must have been one that the particular enforcement notice could have required to cease. It was not enough that it could have been the subject of enforcement action under a differently drafted notice.
Not only was that interpretation supported by the wording of the section, but it also made practical sense. It ensured that the authority did not give deemed permission by an oversight, and provided clarity as to what was and was not permitted: Scott v Secretary of State for the Environment, Transport and the Regions [2000] JPL 833 followed.
Jonathan Clay (instructed by DMH Solicitors) appeared for the appellant; Tim Mould (instructed by the Treasury Solicitor) appeared for the first respondents; the second respondents did not appear and were not represented.
Eileen O’Grady, barrister
