Town and country planning – Enforcement notice – Appeal – Developer applying for part retrospective planning permission for development of house – Appellant local planning authority issuing enforcement notice for part of development carried out without planning permission – Appeal against enforcement notice validated by planning inspector – Appellant appealing – Whether planning inspector erring in law – Whether appeal against enforcement notice statute-barred as notice issued after making of “related application” for planning permission – Appeal allowed
A property at 24 Broadway, Manchester, was a detached two-storey brick-built slate-roofed dwelling house. Although the ground floor was previously in commercial use, in May 2009 planning permission had been granted for change of use of the ground floor to use as a house.
On 12 February 2021, the second respondent developer sought part-retrospective planning permission for a “proposed extension at first floor, loft conversion with rear dormer, including change of use of partial ground floor to shop”.
On 8 April 2021, the appellant local authority issued an enforcement notice for breach of planning control. On the following day, the appellant refused the planning application on the ground that the development resulted in an overly dominant feature at the rear of the property creating unsatisfactory overbearing and overshadowing of neighbouring properties.
The second respondent appealed against the enforcement notice under section 174(2)(a) and (f) of the Town and Country Planning Act 1990. The appellant considered that section 174(2A) barred an appeal on ground (a) because the development at which the enforcement notice was directed was the same as that for which the retrospective part of the planning application had been refused; accordingly, the appeal could only proceed on ground (f).
A planning inspector appointed by the first respondent secretary of state took the view that the substance of the development under the planning application was significantly different from the ground (a) appeal. The planning application involved consideration of the matters enforced against in terms of facilitating the material change of use to create a three-bedroom flat, rather than part of the existing dwelling house. The planning application was not a “related application” for the purposes of section 174(2A) and (2B). Accordingly, the inspector made an order validating the appeal. The appellant appealed under section 289 of the 1990 Act.
Held: The appeal was allowed.
(1) The plain and ordinary meaning of section 174(2B) accorded with the approach taken by the appellant. The application of 12 February 2021 was for “change of use of ground floor to a shop (Class E) together with elevational alterations to the front, erection of first floor extension and installation of rear roof dormer to create a three-bedroom duplex flat (Class C3)”. That application encompassed the building operation of the first-floor extension and rear roof dormer. The matters specified in the enforcement notice as a breach of planning control were “without planning permission, erection of a first-floor extension and installation of rear roof dormer”. If the appellant had granted planning permission for the totality of the development, it would therefore have granted planning permission, inter alia, for the erection of the first-floor rear extension and the installation of the rear roof dormer. It would have granted permission “for the matters specified in the enforcement notice as constituting a breach of planning control”, precisely as stated in section 174(2B).
That was the clear effect of the ordinary and natural meaning of section 174(2B). There was no requirement that there had to be coincidence between the matters specified in the enforcement notice and the development for which planning permission was sought. On the contrary, the drafter, in using the words “for the development” and “would involve granting planning permission” had been careful to provide that planning permission for the development could be greater than the planning permission in respect of the enforcement notice matters.
(2) There was nothing in section 174(2B) to support the submission that the building operation comprising the extension and rear dormer could not be divorced from the use of those constructed elements. The second respondent had not sought to impugn part 3 of the appellant’s enforcement notice, which specified only the “erection” of the extension and “installation” of the rear roof dormer, on the basis that it should have referred to the nature of the use made or to be made of these features. In any event, as a matter of fact, the appellant has, at all times, been concerned solely with the effect on the amenity of the physical presence of the extension and dormer.
(3) Section 174(2A) and 2(B) required that everything covered by the enforcement notice had to be within the ambit of the hypothetically granted planning application. Otherwise, the applicant would not be able to advance, in the context of an appeal against the refusal of planning permission, a matter specified in the enforcement notice. However, that was not the position here: Chesterton Commercial (Bucks) Ltd v Wokingham District Council [2018] EWHC 1795 (Admin); [2018] PLSCS 128 considered.
The operation of section 174(2A) did not depend on whether the reasons a person might be able to deploy in a planning appeal were the same as those that he or she could employ in the enforcement notice appeal on ground (a). The test was merely whether the grant of the application for planning permission for the development, for whatever reason, would involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control.
(4) As regards ground (f), the inspector had power to modify the steps required by the enforcement notice if they were excessive in relation to the issue of amenity. Thus, the steps could be varied to change the extent of any demolition required with regard to the extension and dormer.
The planning inspector simply had to apply the plain words which parliament had chosen to use in section 174(2B). If the inspector had done so in the present case, she would have stopped after finding that the second respondent’s application “would appear to be related to the enforcement notice in the granting planning permission for the application development would involve granting planning permission in respect of the matters alleged in the notice that constituted a breach of planning control…”. That finding was the proper application of parliament’s words. Instead, she wrongly went on to determine the matter by applying a different test. As the inspector had applied the wrong test, her decision would be set aside.
Annabel Graham Paul (instructed by Manchester City Council) appeared for the claimant; Charles Streeten (instructed by the Government Legal Department) appeared for the first respondent; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister