Earlier authorities establish that, as a general principle, an inspector dealing with an enforcement notice appeal should not be criticised for failing to address his mind to a substantive submission that was never put to him. However, the courts recognise at the same time an exception to that principle, namely where an option presents itself from the submissions that have been advanced, or from any site inspection, that any reasonable inspector would consider an obvious alternative course.
In Ahmed v Secretary of State for Communities and Local Government [2013] EWHC 2084 (Admin); [2013] PLSCS 222 the appellant had been granted planning permission in 2005 by the local planning authority (“LPA”) to redevelop a site by erecting a three-storey building on it. In fact, he constructed a four-storey building with a different style of roof. The LPA refused to grant retrospective planning permission, and issued an enforcement notice requiring demolition of the entire building and re-instatement of the site. The appellant appealed on the grounds set out in section 174(2)(a) and (f) of the Town and Country Planning Act 1990 (“the Act”).
The inspector rejected the ground (a) appeal finding that the building as erected did not meet the requirements of the local development plan, and that it would not be appropriate to grant planning permission for it. He also rejected the ground (f) appeal, concluding that he had no power to allow it on the ground of over-enforcement by varying the enforcement notice under section 176(1)(b) of the Act so as to require partial demolition and remodelling of the building. This was because the 2005 planning permission had in the meantime lapsed.
The court allowed the appeal made to it, remitting the matter to the inspector for reconsideration. It held that the inspector had overlooked an obvious alternative that could have remedied the breach of planning control that was the object of the notice – namely the possibility of varying the order as requested by the appellant under ground (f) and at the same time granting retrospective planning permission under section 177 of the Act in relation to the remodelled building. He had been obliged to direct his mind to that possible course, even if he ultimately rejected it. Accordingly, he had erred in law.
John Martin
