Town and country planning – Enforcement notice – Appeal – Second respondent local authority issuing enforcement notice against appellant – Appellant appealing and proposing alternative scheme – Inspector appointed by first respondent secretary of state upholding notice and rejecting alternative scheme – Appellant appealing against inspector’s decision – Whether inspector erring in law – Appeal allowed
The appellant’s family dwelling house was converted into five self-contained flats without the necessary planning permission. The second respondents issued an enforcement notice requiring that use to cease and various facilities for the use of the buildings as five flats to be removed. The appellant appealed. As a fall-back position, the appellant argued that, if the enforcement notice was upheld, he would not need planning permission to return the house to use as a single family house and then to change its use into a house in multiple occupation. Therefore, he put forward to the inspector appointed by the first respondent secretary of state plans for a conversion of the house into three flats. The inspector affirmed the notice, refused permission for the alternative scheme and refused to adjust the steps required to be taken so that a three flat conversion could be brought about. The appellant applied unsuccessfully to the second respondents for permission to carry out the three flat scheme and that decision was not appealed.
However, the appellant appealed against the decision of the first respondent under section 289 of the Town and Country Planning Act 1990 on the basis that permission should have been granted for the development struck at by the notice under section 174(2)(a) of the Act. The powers of the inspector on an appeal under section 177(1) were sufficiently broad that the inspector could have granted permission for the use of the property as three self-contained flats, suitably conditioned, or could have varied the remedial steps required to be taken by the notice so as to bring about the three flat scheme on the plan shown. Furthermore, the notice requirements exceeded what was necessary to remedy the breach of planning control or the amenity harm it did under section 174(2)(f).
The first respondent submitted that the inspector had been entitled to conclude that, as a matter of fact and degree, the three flat scheme had been so substantially different from the five flats, that permission for it could not be granted and so could not be permitted on the appeal against the use described in the enforcement notice.
Held: The appeal was allowed.
(1) An inspector had wide powers to decide whether there was any solution, short of a complete remedy of the breach, which was acceptable in planning terms and amenity terms. If there was, he should be prepared to modify the requirements of the notice and grant permission subject to conditions. However, his primary task was to consider the proposals that had been put before him. Although he was free to suggest alternatives, it was not his duty to search around for solutions. The test for whether a condition could be imposed reducing the development below that for which permission had been applied was whether the development remained in substance that which had been applied for. Such a condition would then fairly and reasonably relate to the permission applied for The main, but not the only, criterion was whether the development was so changed that those who should have been consulted on the changed development had been deprived of that opportunity: Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P & CR 233 and Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744; [2007] PLSCS 1 applied. Moore v Secretary of State for Communities and Local Government [2012] 3 EGLR 91; 46 EG 122 considered.
In the present case, it was clear that something other than the grant of permission for all or part of the matters alleged in the enforcement notice to constitute a breach of planning control would be required to achieve the three flat scheme. However, in reality, if the steps required to be taken could be varied so as to require four flats to be converted into two, together with the removal of the ground floor door, the effect of section 173(11) of the 1990 Act would have been to permit the larger flat to remain, once all the works had been carried out. On that basis the ground (f) route would have been sufficient by itself to achieve the appellant’s favoured fallback position.
(2) In those circumstances, the inspector ought to have gone on and considered whether the power in section 174(3)(b) would be capable of leading to the three flat scheme and he had not done so. On a fair reading of the decision letter, he had not asked himself whether, under section 174(2)(a) and (f), the scheme had been substantially different from the five flats actually developed as a matter of fact and degree. Accordingly, the court was not prepared to hold that only one view was possible, such that any reasonable inspector would have been bound to conclude that the three flat scheme had been too different from the five flats to be brought about through variations to the steps required by the notice and by planning permission on the deemed application or under section 173(11) for the larger flat, or other parts of the works undertaken. It followed that a relevant power which could bring about the three flat scheme had not been considered and could have led to the appeal being decided differently.
Per curiam: The court strongly discouraged the use of witness statements from inspectors in the way deployed here. The statutory obligation to give a decision with reasons had to be fulfilled by the decision letter, which then became the basis of challenge. There was no provision for a second letter or for a challenge to it. A witness statement should not be a backdoor second decision letter. It might reveal further errors of law and was not admissible, elucidatory or not.
Jonathan Wills (instructed by Kingsley Smith) appeared for the appellant; Charles Banner (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Eileen O’Grady, barrister
