Enforcement notice — Variation — Claimant having listed building consent for works to building — Defendant council issuing enforcement notice in relation to works — Inspector upholding notice — Whether notice depriving claimant of rights already granted to it — Whether inspector having power to vary notice — Claim allowed
The claimant owned a Grade II listed building in Southport, with planning permission to convert it from its previous use as a bank into a pub and restaurant. It obtained listed building consent from the second defendants, Sefton Metropolitan Borough Council, for the installation of new doors at the front of the building in accordance with an attached drawing (drawing A). It later made two applications for amendments, both of which were granted. The first referred to drawings B and C, and the second, made a few weeks later, referred to drawing D. However, the correspondence relating to those applications referred to amendments to “planning permission”, not to the listed building consent.
After the claimant carried out building works in accordance with drawing D, the council issued an enforcement notice. The claimant appealed to the Secretary of State, pursuant to section 39(1)(e) of the Planning (Listed Buildings and Conservation Areas) Act 1990. In their evidence, the council maintained that the listed building consent related only to drawing A. The inspector dismissed the appeal.
The claimant challenged that decision under section 65 of the 1990 Act, contending, inter alia, that the inspector should have varied the enforcement notice, which, as it stood, deprived the claimant of rights that had already been granted by amendment to the consent. The second defendants submitted that the inspector had had insufficient evidence before him to vary the notice, and that if the claimant sought a variation, he should have appealed on ground (k) in section 39(1).
Held: The claim was allowed.
There had been sufficient evidence before the inspector upon which he could have found that he should vary the notice. He had had before him the correspondence relating to the amendments, and, although that correspondence erroneously referred to a planning permission, it clearly related to the listed building consent. There was no reason why the claimant should have brought a ground (k) appeal in order to obtain the variation. The inspector had a power to cut down an enforcement notice that was wider in its terms than it ought to be, or that deprived the claimant of rights that it already had. Accordingly, his decision would be quashed and remitted for reconsideration.
Robert White (instructed by Joelson Wilson & Co) appeared for the claimant; Sarah-Jane Davies (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
