Appeal — Enforcement notice — Doubt as to restoration work required — Inspector dismissing appeal — Reference to photograph — Whether notice uncertain and a nullity — Whether requirement that approval of local planning authority be obtained rendered notice a nullity — Appeal allowed
By an enforcement notice issued on July 26 1988, the second respondents, Greenwich London Borough Council, alleged that the appellant was in breach of planning control by erecting a mansard roof on a storage building and constructing foundations at the rear of 21-23 Burrage Place, Plumstead, London SE18. The appellant’s appeal against the notice was dismissed by the Secretary of State for the Environment, by his inspector’s letter of May 2 1989. The appellant appealed that decision under section 246 of the Town and Country Planning Act 1971. It had been contended on her behalf before the inspector that the enforcement notice was a nullity as it required the storage building to be restored to its condition before the development took place and that was not specific.
In his decision letter the inspector had sought to correct this error under the powers in section 88A(2) of the 1971 Act by reference to a photograph which gave approximate details of the original form of the roof in question. He therefore directed that additional words be inserted into the enforcement notice requiring the reinstatement of the original pitched roof by reference to the photograph and the design of which “… be first agreed with the Local Planning Authority”. Although the appellant’s original ground of appeal referred only to the reference to the photograph, at the hearing her counsel submitted that the agreement of the local planning authority introduced sufficient uncertainty as to render the notice a nullity.
Held The appeal was allowed.
The inspector was not in error in making reference to the photograph as evidence of the prior condition of the building or in correcting the enforcement notice to the same effect. However, in adding the requirement that the appellant must first agree with the local planning authority the design of the restoration work, he had erred; the enforcement notice thereby became uncertain and failed to specify with sufficient particularity what was required of the appellant.
However, because the appellant lost on the grounds of appeal set out in the notice of motion, and succeeded only on a point taken for the first time before the court, the first respondent was taken by surprise and accordingly there would be no order as to costs.
Miller-Mead v Minister of Housing and Local Government
[1963] 2 QB 196 and
Coventry Scaffolding Co (London) Ltd v Parker
[1987] JPL 127 followed.
Clive Newberry (instructed by Cook Taylor, of Eltham) appeared for the appellant; and William Hicks (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment. The second respondents, Greenwich London Borough Council, did not appear and were not represented.
