Town and country planning – Enforcement notice – Appeal – Section 174(2)(a) and (g) of the Town and Country Planning Act 1990 – Claimant applying for respective planning permission for pigeon-deterrent netting following issue of enforcement notice – Defendant planning authority refusing to determine application under section 70C of the 1990 Act – Claimant applying for judicial review – Whether defendants acting unlawfully in declining to determine application – Application granted
The claimant management company owned the freehold title to 15 and 17 De Vere Gardens. London W8, which were broken into flats, held on long leasehold or statutory tenancies. The properties were next to one another on the east side of the street. No 21 was on the other side of No 17. In 2010, as part of a redevelopment project, work began on the demolition of two hotels opposite the properties. Pigeons, which had nested in the hotels for many years, were driven out and began to roost on the eaves and roofs of the properties. Netting was erected across the rear of nos 17 and 21 to control the resulting pigeon infestation without the necessary planning permission. The claimant subsequently applied for retrospective planning permission, but the application was put on hold. The defendant local planning authority issued an enforcement notice.
The claimant appealed against the enforcement notice under section 174 of the Town and Country Planning Act 1990 but failed to pay the requisite fee for an appeal under section s.174(2)(a) within the time limit and the appeal brought on that round lapsed. However, the planning inspector allowed the claimant’s appeal under section 174(2)(g) on the ground that the period specified in the enforcement notice fell short of what should reasonably have been allowed and the claimant was allowed to submit a revised planning application. The time was extended by five months, due to end on 15 March 2016. In January 2016, the claimant submitted a revised planning application. In March, a planning officer recommended that the defendants should decline to determine the application. The Planning Applications Committee (PAC) followed that advice. It found that the application was for the same development as that which was the subject of a pre-existing enforcement notice and as such the planning authority could decline to determine the application under section 70C of the 1990 Act.
The claimant applied for judicial review of that decision. It contended that the PAC, in applying section 70C, had frustrated the inspector’s decision, which had expressly allowed the claimant’s appeal against an enforcement notice under section 174(2)(g) to enable consideration of a re-submitted application for planning permission.
Held: The application was granted.
(1) Section 70C gave planning authorities a discretion to decline to determine a retrospective application for planning permission. Its aim was to ensure that the applicant could not insist on more than one determination of the underlying planning merits of the development. However, where relevant merits had not been determined, section 70C was not designed to prevent them being considered. Thus, in an enforcement appeal, it was open to an inspector to grant an appeal under ground (g) to allow time for a planning application to be made for something outside the development with which the notice itself was concerned. That was not in conflict with section 70C. For an inspector to allow an appeal under ground (g) to allow the appellant time to bring an effective appeal under ground (a) was not incongruous; and dependent upon the circumstances, it might be entirely appropriate: R (on the application of O’Brien) v South Cambridgeshire District Council [2016] EWHC 36 (Admin) applied. Ioannou v Secretary of State for Communities and Local Government [2104] EWCA Civ 1432; [2015] EGLR 10 followed.
(2) A planning officer’s report usually included a recommendation as to how the application should be dealt with. In the absence of contrary evidence, it was a reasonable inference that members of the planning committee followed the reasoning of the report, particularly where a recommendation was adopted. Planning appeals were an adversarial procedure, akin to court or tribunal proceedings, in which opposing parties made competing submissions, and the decision-maker adjudicated upon them, giving reasons for his conclusions limited to the main issues in dispute. In contrast, a local planning authority was an administrative body, determining an individual application for planning permission. Its reasons ought to state why planning permission was granted, but it was not conducting a formal adjudication and so was not required to give reasons for rejecting the representations made by objectors to the grant of planning permission: R (on the application of Zurich Assurance Ltd (t/a Threadneedle Property Investments)) v North Lincolnshire Council [2012] EWHC 3708 (Admin) and R (on the application of Hawksworth Securities Plc) v Peterborough City Council [2016] EWHC 1870 (Admin) applied.
The sole issue before the inspector in the present case had been whether she should extend time for compliance by allowing the appeal under ground (g). Even if the inspector’s decision was not unambiguously clear on its face, it became abundantly clear when considered in its proper context. A revised application must have meant a planning application for the same development as covered by the enforcement notice and appeal, but one which was complete. The officer’s report did not accurately reflect the inspector’s view that the claimant should get additional time to complete a further application which was substantially the same as the first application. It was not a case where the claimant was trying to manipulate the system. The merits had not been considered because the relevant fee had not been paid. Therefore, the report was materially misleading and the PAC had acted unlawfully in declining to determine the application and the planning authority’s refusal to determine the application for planning permission would be quashed. Given the inspector’s conclusion on ground (g), the PAC would not be able to decline to determine the application without giving reasons for so doing in the face of the inspector’s decision.
Christopher Jacobs (instructed by direct access) appeared for the claimant; Mark Westmoreland Smith (instructed by Kensington and Chelsea Royal London Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
