Section 173(1)(a) of the Town and Country Planning Act 1990 provides that an enforcement notice must “state the matters which appear to the local planning authority to constitute the breach of planning control” and this clearly requires a complete statement of the alleged facts. It will not be possible for the local planning authority (LPA) in later proceedings involving the notice to expand upon those matters, as was demonstrated in Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473; [2012] PLSCS 246.
In that case the LPA issued an enforcement notice in respect of a scrap-metal yard in respect of which planning permission had been granted in 1972. There had been a considerable rise in throughput resulting in more noise, dust and vehicles. The notice alleged a breach of planning control consisting of a material change of use of the land, without planning permission, by intensification of that use citing the relevant throughput tonnages. On appeal, the inspector concluded that the intensification of use was not sufficient to result in a material change in the character or nature of the use. Accordingly, she allowed the appeal
The LPA appealed unsuccessfully to the High Court, and from there to the Court of Appeal. That appeal was also dismissed. The court held that the inspector had not erred in law, and that her conclusion was in line with legal authority. However, the LPA also applied for permission to amend its grounds of appeal. Its case before the inspector had been based on an intensification of use, reflecting the content of the notice. Before the Court of Appeal, it sought to introduce other factors such as the increased use of gas bottles and canisters – with the potential for explosions – and changes in legislation that had required HGV traffic associated with the site to arrive at unsociable hours.
The court ruled that it was not open to the LPA to introduce different factors, in part because that was not the way in which the case was put to the inspector and in part because the further factors were not included in the alleged breach of planning control in the notice, as required by section 173(1) of the 1990 Act. It was not appropriate to give the authority, at that stage of the procedure, an opportunity to seek enforcement on other grounds.
John Martin is a freelance writer.
