Ioannou v Secretary of State for Communities And Local Government & Anor

Factual and Procedural Background

This appeal arises under section 289 of the Town and Country Planning Act 1990 against a Planning Inspector's decision on an Enforcement Notice appeal. The dispute concerns a single family dwelling house converted without planning permission into five self-contained flats. The Enforcement Notice required cessation of this use and removal of facilities necessary for the five-flat use. The Appellant engaged in a prolonged attempt to mislead the planning authority and the Inspector regarding when the use began. As a fallback, the Appellant argued that if the Enforcement Notice were upheld, no planning permission would be needed to revert the property to a single family house or to change its use to a house in multiple occupation (HMO). The Appellant submitted plans for conversion into three flats, which the local authority and Inspector considered preferable to the HMO use due to better amenities. However, the Inspector did not grant permission for the three-flat scheme nor adjust the Enforcement Notice requirements to allow it. Instead, the Inspector extended the compliance period to allow time for an application for the three-flat scheme, which was subsequently refused by the local planning authority and not appealed.

Legal Issues Presented

1. Whether the Planning Inspector possessed the power to grant planning permission for an alternative three-flat scheme on an appeal against an Enforcement Notice targeting the five-flat breach.
2. The scope of the Inspector’s powers to require remedial steps and their relationship to alternative schemes under grounds (a) and (f) of section 174(2) of the 1990 Act.
3. Whether the Inspector erred in law by failing to consider or properly exercise powers under section 173(4)(b) to vary the Enforcement Notice to remedy injury to amenity caused by the breach.
4. The admissibility and evidential weight of a witness statement from the Inspector elucidating or contradicting the reasoning in the decision letter.

Arguments of the Parties

Appellant's Arguments

• The Inspector wrongly concluded he had no power to grant permission for the three-flat scheme or to vary the Enforcement Notice requirements to bring about that scheme.
• The powers under sections 173 and 177 of the 1990 Act are broad enough to allow permission for the three-flat scheme, either by granting planning permission under ground (a) or by varying the notice under ground (f), with the balance of works receiving deemed planning permission under section 173(11).
• The Inspector failed to consider fully the extent of his powers, specifically under section 173(4)(b) to remedy injury to amenity, which could have allowed the three-flat scheme.
• Reliance on Court of Appeal decisions, especially Tapecrown Ltd. v First Secretary of State and Moore v Secretary of State for Communities and Local Government, which support an Inspector’s broad discretion to consider alternative solutions short of total removal of development.
• The witness statement from the Inspector should not be admitted as it contradicts the reasoning in the decision letter.

Secretary of State's Arguments

• The Inspector correctly concluded that the three-flat scheme was substantially different from the five-flat breach and could not be permitted on an appeal against the Enforcement Notice.
• The Wheatcroft principle applies, limiting the Inspector’s power to grant permission only to developments substantially the same as those alleged in the Enforcement Notice.
• The witness statement from the Inspector elucidates rather than contradicts the reasoning in the decision letter and is admissible under established legal principles.
• The Appellant should have pursued an appeal against the refusal of the three-flat scheme by the local planning authority rather than relying on the Enforcement Notice appeal to achieve that outcome.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tapecrown Ltd. v First Secretary of State [2006] EWCA Civ 1744, [2007] 2 P&CR 7	Broad discretionary power for Inspectors to consider alternative solutions short of total removal under ground (a) and (f) appeals.	Supported Appellant’s submission that Inspectors have wide powers to grant permission for acceptable modifications; however, limited by the specific wording of the statute regarding matters alleged in the Enforcement Notice.
Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202	Clarification that Inspectors should consider ground (f) appeals properly, even if issues overlap with other grounds.	Confirmed that Inspectors should consider obvious alternatives under ground (f); supported Appellant’s argument that the Inspector failed to consider the three-flat scheme fully.
Bernard Wheatcroft Ltd. v Secretary of State for the Environment (1982) 43 P&CR 233	Test for whether a condition or permission relates fairly and reasonably to the original application; whether the development remains in substance the same.	Applied to limit the Inspector’s power to grant permission or vary notice requirements only to developments not substantially different from those alleged in the Enforcement Notice.
R v Westminster City Council ex p Ermakov [1996] 2 All ER 302	Principles governing admissibility of post-decision evidence elucidating or contradicting reasons for decision.	Used to reject the Inspector’s witness statement as inadmissible because it contradicted the reasoning in the decision letter.
R (Lanner Parish Council) v Cornwall County Council [2013] EWCA Civ 1290	Reinforcement of principles on admissibility of post-decision evidence in planning appeals.	Supported the approach to exclude the Inspector’s witness statement.
R (Gleeson Developments Ltd) v Secretary of State for Communities and Local Government [2013] EWHC 3166 (Admin)	Application of Ermakov principles in planning context regarding admissibility of explanatory witness statements.	Distinguished from the present case; statement here was not merely elucidatory but contradictory.
Wessex Regional Health Authority v Salisbury DC and SSE [1984] JPL 344	Application of Wheatcroft principle regarding substantial difference in development proposals.	Illustrated that a reduction in number of houses was considered substantially different, supporting the need for consultation on material changes.

Court's Reasoning and Analysis

The Court analysed the statutory framework governing Enforcement Notices and appeals under the Town and Country Planning Act 1990, focusing on the powers of the Inspector under sections 173, 174, and 177. The Court emphasized that the scope of the Inspector’s power to grant planning permission on appeal (ground (a)) is limited to the matters stated in the Enforcement Notice as constituting the breach of planning control. The alternative three-flat scheme was not part of the matters alleged in the Notice; thus, permission for it could not be granted under ground (a) or the deemed planning application.

The Court further considered the power to vary the Enforcement Notice under ground (f), which allows variation of steps required to remedy injury to amenity caused by the breach. Although the Inspector extended the compliance period to allow a planning application for the three-flat scheme, the Inspector did not expressly consider varying the Notice under section 173(4)(b) to require steps consistent with the three-flat scheme. The Court noted ambiguity about whether substandard accommodation created by the breach constitutes an "injury to amenity" under this provision but held that the Inspector should have considered this power.

The Court rejected the Secretary of State’s argument that the three-flat scheme was so substantially different from the five-flat breach that it could not be permitted, finding no evidence in the decision letter that the Inspector made a factual judgment on this point. The Court concluded that the Inspector failed to consider a relevant power that could have led to a different outcome.

Regarding the Inspector’s witness statement submitted post-decision, the Court declined to admit it as it contradicted the reasoning in the decision letter. The Court highlighted the importance of reasons being contained in the decision letter itself to maintain transparency, avoid rationalization, and preserve confidence in the planning appeal process.

Finally, the Court rejected the Secretary of State’s submission that the appeal should not be remitted on discretionary grounds, recognizing the Appellant’s entitlement to have an arguable legal error resolved, despite the potential for extending the unlawful use.

Holding and Implications

The Court ALLOWED THE APPEAL and remitted the matter for reconsideration by the Inspector with directions to consider the full extent of his powers under section 173(4)(b) to vary the Enforcement Notice requirements to remedy injury to amenity, including the possibility of bringing about the three-flat scheme.

The direct effect of this decision is to require the Inspector to reconsider the appeal with proper regard to all relevant powers, potentially enabling a permitted alternative scheme that better addresses amenity concerns. The Court’s ruling does not establish new precedent but clarifies the limits and scope of Inspectors’ powers on Enforcement Notice appeals and cautions against reliance on post-decision witness statements that contradict reasons given in decision letters.