In Manchester City Council v Secretary of State for Levelling Up, Housing and Communities and another [2022] EWHC 1062 (Admin); [2022] PLSCS 77, the High Court has overturned an inspector’s decision which failed to correctly apply section 74 of the Town and Country Planning Act 1990.
The property concerned was a single dwelling house. A planning application was submitted to change the ground floor to Class E use and for retrospective permission for a first-floor extension and roof dormer to create a duplex flat. The council issued an enforcement notice requiring demolition of the extension and removal of the roof dormer for reasons relating to visual appearance, overbearingness and impacts on neighbouring residential amenity. The following day, the council also refused the application, citing the same reasons. While this refusal was not appealed, the enforcement notice was under the grounds in section 174(2)(a) and (f) – namely, that permission ought to be granted for the development and that the steps required by the enforcement notice were excessive.
At the outset of the appeal the inspector advised that if a retrospective application had already been made for the works, a ground (a) appeal would be precluded by section 174(2A) and (2B), which prevent appeals where a “related application for planning permission” has been made. However, the inspector found that the application made was not related because the enforcement notice was in respect of the building works only, whereas the application had been made for the building works and use as a separate flat.
The court disagreed with the inspector, finding that if the application were granted it would be, inter alia, for matters specified in the enforcement notice as the building works would be encompassed in this. It held that when section 174(2B) was given its natural and ordinary meaning, it covered exactly this type of situation – where the permission granted would be larger than the matters specified in the enforcement notice. This was clear from the words “would involve granting planning permission in respect of matters specified in the enforcement notice”. Therefore, to allow the appeal under ground (a) would be to permit the second respondent to have two bites at the cherry, something both the courts and legislation seek to prevent.
This judgment gives very clear guidance about the ambit of section 174(2B) and confirms that its application is not a matter of planning judgment. Instead, the test is a simple one of fact: would the particular development enforced against occur if planning permission were granted? If so, it will be caught by section 174(2B).
On a wider point, it is worth noting that some parts of section 174 are set to be reformed by the Levelling-up and Regeneration Bill; however, the wording discussed above is currently intended to remain the same.
Erica Snellgrove is a solicitor in the planning and environmental team at Irwin Mitchell
