Planning control – Enforcement notice – Planning permission for alteration and conversion of barn – Enforcement notice alleging erection of new building without planning permission and requiring its demolition – Appeal against notice – Common ground that permission not implemented and that building as built materially different – Deputy judge holding that enforcement notice going beyond what was necessary since breach could be remedied by altering building – Whether judge taking impermissible approach – Appeal allowed
In 2006, the second appellant council granted planning permission to the respondent for alterations, conversion and a roof extension to convert a barn on his farm to provide 10 stables, a tack room, a feed store and an office in accordance with plans submitted with the planning application. In 2008, one of the council’s officers visited the farm after complaints were received that the building being constructed was not in accordance with the approved plans; thereafter, they wrote to the respondent asking him to cease construction immediately.
In April 2009, the council refused an application by the respondent for retrospective planning permission for retention of the building. They then served an enforcement notice alleging a breach of planning control by the erection of a new building without planning permission and requiring the building to be demolished.
The respondent appealed to the first appellant’s planning inspector, before whom it was common ground that the 2006 planning permission had not been implemented. The inspector found that the building was materially different from that to which the 2006 permission related by reason of its overall design, scale, height and internal configuration, including a new Mansard-style roof and the addition of a first floor and separate veterinary areas. He concluded that the matters alleged in the enforcement notice had occurred and constituted a breach of planning control and he dismissed the appeal against that notice.
The respondent appealed under section 289 of the Town and Country Planning Act 1990. Allowing the appeal, the deputy judge held that the steps required by the enforcement notice went beyond what was necessary to remedy the breach. He found that the implementation of the 2006 permission would have involved the substantial demolition of the old barn and what was tantamount the provision of a new building, given the absence of any conditions limiting matters such as the proportion of the existing structure that had to be retained, and that the relevant breach of planning control arose from changes to the design and external appearance of the building. He concluded that the respondent could remedy the breach by altering the new building to conform to the 2006 permission. The appellants appealed.
Held: The appeal was allowed.
The deputy judge’s formulation of the issues had not reflected the way the case had been presented to him or the submissions advanced on behalf of the parties. He had departed from the submissions in relation to the enforcement notice and its potential defects and had gone behind the inspector’s factual findings and evaluation in an impermissible way. It was common ground before the inspector that the 2006 permission had not been implemented and that the building, as built, was materially different from the previous building because of its overall design, height and internal configuration. The 2006 permission had been for alterations, conversion and a roof extension. The inspector had found, as a matter of fact and degree, that the development could not reasonably be called a conversion of the original building and was a new building. The deputy judge had therefore departed from the approach of all the parties, and the findings of fact made by the inspector, in concluding that the 2006 permission permitted the substantial demolition of the old barn building and the provision of what would be tantamount to a new building. He had embarked on a fact-finding exercise that was not open to him in the context of an appeal on a point of law and had made primary findings of fact that were not open to him on the evidence.
Furthermore, the deputy judge’s approach to construction of the planning permission was flawed. In construing a planning permission on which members of the public were entitled to rely as a public document, the apparent meaning of the words used should not be altered: Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958; (1970) 214 EG 1493 applied. The apparent meaning of the words “alteration” and “conversion” in the 2006 permission was not to be altered by reference to what was not in the permission.
The deputy judge had also taken an incorrect approach to construing the enforcement notice. The alleged breach was, clearly and unambiguously, the erection of a new building, not, as the deputy judge had found, unauthorised changes to the design and external appearance of the approved building. The judge’s approach relied impermissibly on the factual matrix of the notice and matters of necessary implication, contrary to the well-established approach based on the need for certainty in the drafting and interpretation of enforcement notices: Slough Estates and Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196; (1962) 185 EG 835 applied.
The deputy judge’s conclusion that the respondent was entitled to remedy the breach by altering the new building, rather than being required to demolish it, depended on his flawed rewording of the 2006 permission and the enforcement notice. Accordingly, he had erred in law in his consideration of whether the steps required by the notice went beyond what was necessary. His order should be set aside accordingly. There had been no error of law by the inspector that could justify upholding the judge’s order.
Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the first appellant; Celina Colquhoun (instructed by the legal department of Chiltern District Council) appeared for the second appellant; Harriet Townsend (instructed by Field Fisher Waterhouse LLP) appeared for the respondent.
Sally Dobson, barrister