Factual and Procedural Background
This opinion concerns the Secretary of State's appeal against a High Court order allowing the Appellant's appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act"). The Appellant had previously appealed under section 174 of the Act against an enforcement notice issued by the local planning authority regarding the unauthorised conversion of a single family dwelling into multiple self-contained flats. The enforcement notice was issued on 17th November 2010, and the Inspector dismissed most grounds of appeal but allowed an extension of time for compliance. The High Court judge (Judge Ouseley) allowed the Appellant's appeal on a particular statutory ground, which is now under challenge by the Secretary of State.
Legal Issues Presented
- Whether the Inspector erred in concluding that he did not have power to allow the ground (f) appeal to vary the steps required by the enforcement notice so as to enable implementation of an alternative three flats scheme, with the remaining works treated as having retrospective planning permission under section 73A by virtue of subsection 173(11).
- The scope and effect of the powers under subsections 173(11) and 177(1) of the 1990 Act in relation to enforcement notice appeals.
- The applicability of the Wheatcroft principle to appeals under ground (f) and to the deemed planning permission under subsection 173(11).
- Whether a purposive interpretation of subsection 173(11) allows for retrospective permission to be granted for development not in existence when the enforcement notice was issued.
Arguments of the Parties
Secretary of State's Arguments
- The only statutory power to grant planning permission on an appeal under section 174 is under subsection 177(1), which is limited to the matters stated in the enforcement notice as constituting the breach of planning control.
- There is no power under subsection 177(1) to grant permission for the alternative three flats scheme.
- Subsection 173(11) only treats as granted planning permission for buildings, works, or activities that existed at the time the enforcement notice was issued and could have been required to be removed or ceased by the notice.
- The alternative three flats scheme involved new works not existing when the notice was issued and thus cannot benefit from subsection 173(11).
- Allowing the ground (f) appeal and varying the enforcement notice steps cannot circumvent the statutory limitations on planning permission granted on appeal.
- The powers to grant planning permission under subsection 177(1) and to issue enforcement notices require regard to the development plan, whereas ground (f) appeals do not, indicating Parliament did not intend ground (f) to be used to grant new planning permission.
Appellant's Arguments
- The ground (f) appeal allows for "under-enforcement" to remedy injury to amenity caused by the breach, providing greater flexibility than earlier legislation.
- The Inspector should have considered the three flats scheme as an obvious alternative remedying the injury to amenity caused by the five flats scheme, consistent with case law including Tapecrown Ltd v First Secretary of State.
- A purposive interpretation of subsection 173(11) should allow retrospective permission for an alternative scheme sufficiently similar to the development alleged in the enforcement notice, applying the Wheatcroft principle.
- Restricting subsection 173(11) to existing buildings or works when the notice was issued would be punitive and inconsistent with the remedial nature of enforcement proceedings.
- The overlap between grounds (a) and (f) reflects the planning judgment element in ground (f), and the ground (f) appeal should not be rendered otiose by a narrow interpretation.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Bernard Wheatcroft v Secretary of State for the Environment [1982] 43 P & CR 233 |
Conditions may reduce the scope of development granted planning permission provided the development is not substantially different from that applied for. |
The court held the Wheatcroft principle did not apply to ground (a) appeals or deemed applications under section 177(1)(a), nor to permissions treated as granted under subsection 173(11) and section 73A. |
| Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744; [2007] 2 P & CR 7 |
Inspectors have wide powers under ground (f) appeals to consider solutions short of complete remedy of the breach, including obvious alternatives that overcome planning difficulties. |
The court acknowledged the flexibility under ground (f) appeals but noted this is subject to statutory limitations on the scope of planning permissions that may be granted or deemed granted. |
| Moore v Secretary of State for Communities and Local Government [2013] JPL 192 |
Reinforces the principle that Inspectors should consider obvious alternatives when appropriate, even if submitted under different grounds of appeal. |
The court found no obvious alternative in that case but endorsed the principle of considering alternatives within statutory powers. |
| Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566 |
Clarified that grants of permission cannot extend beyond the terms of the enforcement notice. |
The court confirmed that the question of exceeding the terms of the notice does not arise where permission is granted within the scope of the notice. |
| Fidler v First Secretary of State [2004] EWCA Civ 1295 |
The enforcement notice must specify the breach and the steps required; permission treated as granted under subsection 173(11) only applies to activities the notice could have required to cease. |
The court rejected the argument that permission under subsection 173(11) extends to any activities on site not subject to enforcement action, supporting a narrow interpretation. |
Court's Reasoning and Analysis
The court analysed the statutory framework governing enforcement notice appeals under the 1990 Act, focusing on the powers to grant planning permission under subsection 177(1) and the effect of subsection 173(11) which treats certain permissions as granted retrospectively under section 73A. The court affirmed that the power to grant planning permission on appeal is confined to the matters stated in the enforcement notice as constituting a breach of planning control.
The court rejected the Appellant's contention that the Inspector could use ground (f) appeals combined with subsection 173(11) to effectively grant retrospective permission for an alternative scheme not in existence at the time of the enforcement notice. It held that subsection 173(11) applies only to buildings, works, or activities existing when the notice was issued and which the notice could have required to be removed or ceased.
The court distinguished the Wheatcroft principle, holding it does not apply to ground (a) appeals or deemed applications under subsection 177(1), nor to permissions treated as granted under subsection 173(11) and section 73A, because these permissions are retrospective and strictly defined.
The court noted that while ground (f) appeals allow some flexibility to vary enforcement notice requirements, this does not extend to granting planning permission for new or different development beyond the scope of the notice. The court emphasized the importance of adherence to statutory limits and the role of the development plan in the decision-making process.
The court acknowledged the Appellant's reliance on case law permitting consideration of "obvious alternatives" under ground (f) appeals but clarified that such alternatives must fall within the scope of the breach alleged in the enforcement notice. The court observed that the Inspector's decision to extend the compliance period under ground (g) to allow exploration of the alternative scheme was appropriate and consistent with the statutory framework.
Finally, the court endorsed the High Court judge's caution against admitting witness statements from Inspectors as a backdoor to revising or supplementing decision letters, emphasizing the statutory requirement for decisions with reasons to be contained in the decision letter itself.
Holding and Implications
The court ALLOWED THE SECRETARY OF STATE'S APPEAL and set aside the High Court judge's judgment that the Inspector had power under ground (f) and subsection 173(11) to enable implementation of the alternative three flats scheme.
The court restored the Inspector's original decision that he lacked such power. This means that retrospective planning permission cannot be deemed granted for development not in existence at the time the enforcement notice was issued, and that enforcement notice appeals remain confined to the breach specified in the notice.
No broader precedent was established beyond reaffirming the statutory limits on enforcement notice appeals and the application of the Wheatcroft principle and subsection 173(11). The decision underscores the remedial nature of enforcement proceedings and the necessity for alternative schemes to be pursued through separate planning applications rather than through enforcement appeal mechanisms.