Enforcement notice – Contravention – Sections 179(2) and 181(5) of the Town and Country Planning Act 1990 – Defendant breaching enforcement notice requiring reinstatement of buildings as single dwellings – Breaches involving change of use not amounting to development – Whether defendant being charged with appropriate offence – Appeal dismissed
The defendant owned certain properties in London which had originally been constructed as single dwelling houses but the defendant converted each into two or three flats without having obtained the requisite planning permission. An outbuilding was also constructed without planning permission. Newham London Borough Council, as the relevant local planning authority, issued enforcement notices specifying the steps to be taken to remedy the breaches of planning control, including the removal of extra kitchens which had been installed. The defendant complied with the enforcement notices and returned the houses to single dwellings but subsequently converted them into flats again. The local authority initially issued a summons alleging breach of section 181(5) of the Town and Country Planning Act 1990 Act but later issued a fresh summons alleging breach of section 179(2) of the Act.
At the hearing before the Crown Court, the defendant argued that he had not committed any offence under section 179(2) but acknowledged that he might have committed an offence under section 181(5). However, he argued that that was a summary offence which was then out of time. The judge ruled that, assuming the facts were as asserted by the prosecution, the defendant had committed offences under section 179(2). Accordingly, the defendant pleaded guilty to four counts of breaching an enforcement notice, contrary to section 179(2) for which he was fined £16,775, payable within 12 months, or 12 months’ imprisonment in default.
Section 179(2) of the Town and Country Planning Act 1990 provided: “Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence”. Section 181(5) provided: “Where without planning permission a person carries out any development on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice: (a) he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, and (b) no person shall be liable under section 179(2) for failure to take any steps required to be taken by an enforcement notice by way of removal or alteration of what has been so reinstated or restored”. The defendant appealed against his conviction.
Held: The appeal was dismissed.
At first blush, the provisions of section 179 appeared to be entirely apposite to cover the situation in the present case. Nevertheless it was necessary to consider the relationship between sections 179 and 181. The defendant had sought to argue that he had carried out the development by way of reinstating buildings or works which had been removed in compliance with the enforcement notice. However, there were a number of answers to that argument. Section 181(5) was predicated upon the conclusion that the work constituted development but works of reinstatement did not amount to development within the 1990 Act. The definition of “development” in section 55 of the 1990 Act did not include works which affected only the interior of the building or did not materially affect the external appearance of the building. Therefore, the judge was correct to conclude that there had been no development. Furthermore, section 181(5) said nothing about the use of the land or building, yet it was an integral part of the complaint made by the local authority that the defendant was using the building unlawfully. On any interpretation of section 181(5) it could not be said to be aimed at development involving a material change of use. That approach was entirely consistent with that taken by Wilkie J in Pathfield Estates Ltd v Haringey London Borough Council [2013] EWHC 2053 (Admin), at paragraph 30, where he held that the stark effect of section 181(5)(b), pointed irresistibly to the conclusion that section 181(5) was not an offence which could be committed by a person who had previously complied with an enforcement notice by removing works ancillary to a change of use reinstating those works, which in themselves did not amount to a development. The restored change of use was a breach of planning law which was appropriately and properly charged as a section 179(2) offence, relying on the enabling provisions of section 181(1) and (2). That mirrored precisely the reasoning of the judge below in the present case with which the Court of Appeal agreed.
Accordingly the defendant’s appeal would be dismissed. Where an enforcement notice alleged a breach of planning control involving unlawful change of use rather than development without planning permission, it was not appropriate to charge an offence in contravention of section 181(5); the appropriate offence was section 179(2).
Gulam Ahmed (instructed by Portway Solicitors) appeared for the defendant; Jonathan Wills (instructed by the Solicitor to Newham London Borough Council) appeared for the prosecution.
Eileen O’Grady, barrister
