Koumis v Secretary of State for Communities and Local Government

Factual and Procedural Background

This appeal arises from an order dated 9 October 2012 by Judge Walker dismissing the Appellant's application under sections 288 and 289 of the Town and Country Planning Act 1990 ("the Act"). The Appellant sought to quash an Inspector's decision dated 8 April 2011, which dismissed the Appellant's appeal against the refusal by the Second Respondent to grant planning permission for redevelopment of a site at 16-18 Hazelwood Lane for 11 flats. The Inspector also dismissed the Appellant's appeal against an enforcement notice issued by the Second Respondent in respect of the site and upheld the notice with some corrections and variations.

The procedural history includes initial dismissal of the Appellant's appeals under the written representations procedure in February 2009, which was subsequently quashed by consent. The appeals were redetermined after an inquiry in March 2011. The case involved considerable delay, with planning permission refusal dating back to January 2008 and enforcement notice issued in June 2008.

Substantively, the Second Respondent had granted planning permission in 2005 for 9 flats on the site, but the development as built contained 11 flats. The enforcement notice sought to reduce the scale of the development, particularly its ridge height. A key issue was the correct ridge height approved in 2005: the Second Respondent contended it was 9.5 metres, while the Appellant contended it was 10.5 metres. The Inspector ultimately concluded on the balance of probabilities that the approved ridge height was 9.5 metres.

The Appellant challenged the Inspector's decisions on several grounds, including the failure to extend the compliance period for the enforcement notice from three to six months as conceded by the Second Respondent at the inquiry. The Second Respondent attempted to address this by issuing variation notices under section 173A of the Act, but procedural errors in those notices complicated the issues before the court.

Legal Issues Presented

1. Whether the Inspector erred in law by failing to vary the enforcement notice to extend the compliance period from three to six months as conceded by the Second Respondent.
2. Whether the enforcement notice, as varied by the 4 May 2012 notice, was rendered a nullity for failing to specify a valid compliance period commencing after the notice took effect.
3. Whether the Inspector lawfully determined the correct ridge height of the development approved in 2005 by relying on extrinsic evidence to resolve ambiguity between two competing drawings numbered PR/16-18/LAYOUT/A.
4. Whether the Inspector gave adequate reasons for preferring the Second Respondent's version of the approved drawing showing a 9.5 metre ridge height over the Appellant's version showing 10.5 metres.

Arguments of the Parties

Appellant's Arguments

• The 4 May 2012 variation notice served by the Second Respondent had the effect of rendering the enforcement notice a nullity because it specified a compliance period starting before the notice took effect, contrary to statutory requirements.
• The Inspector erred in law by failing to direct a variation to the enforcement notice to extend the compliance period from three to six months, despite having indicated an intention to do so.
• The Inspector wrongly preferred the Second Respondent’s version of the 2005 approved drawing (showing 9.5 metres) over the Appellant’s version (showing 10.5 metres) without adequate reasons.
• The Inspector improperly relied on extrinsic evidence to resolve ambiguity in the planning permission rather than interpreting the permission itself.

Respondents' Arguments

• The Second Respondent contended that the 4 May 2012 notice was an erroneous exercise of its powers under section 173A and attempted to correct this with a subsequent notice on 8 May 2012.
• The Inspector’s decision must be read as a whole; the omission of the compliance period extension from the list of variations was immaterial as the intention to vary was clear from paragraph 7 of the decision letter.
• Extrinsic evidence was admissible and properly used by the Inspector to determine which of the two drawings numbered PR/16-18/LAYOUT/A was the approved plan, given ambiguity.
• The 4 May 2012 variation notice did not render the enforcement notice a nullity because the defect was not apparent on the face of the notice and could only be identified with extrinsic evidence of the ongoing appeal.
• The Second Respondent was entitled to withdraw the defective 4 May 2012 notice and replace it with a valid notice before judicial review proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing the procedural nature of the appeal under sections 288 and 289 of the Act, noting that the powers exercised by the Second Respondent under section 173A to extend the compliance period were subsequent to the Inspector's decision and could not affect its lawfulness.

Regarding the key factual dispute over the ridge height of the approved development, the court held that the Inspector was entitled to rely on extrinsic evidence to resolve ambiguity between two competing drawings with the same number. The Inspector’s preference for the version supported by contemporaneous evidence, including the committee report and evidence from an adjacent developer, was reasonable and adequately explained in the decision.

On the question of whether the 4 May 2012 variation notice rendered the enforcement notice a nullity, the court distinguished this case from precedent where defects were apparent on the face of the notice. Here, the defect (that the compliance period started before the notice took effect due to an ongoing appeal) was only identifiable through extrinsic evidence. The court reasoned that the statutory power to correct errors on appeal is broad and that the Miller-Mead nullity principle should be confined to defects apparent on the face of the notice.

The court also reasoned that the Second Respondent was entitled to withdraw the defective 4 May 2012 notice and replace it with a valid variation notice before judicial review proceedings, consistent with the principle in Smith v East Elloe. The purported nullity argument failed because the enforcement notice itself was valid prior to the defective variation notice, and the variation notice was effectively withdrawn and corrected.

Finally, the court found that the Inspector's failure to include the compliance period extension in the list of variations was an error of law but that this error became academic once the Second Respondent effectively extended the compliance period by valid subsequent notice.

Holding and Implications

The court dismissed the Appellant's appeal.

The court upheld the Inspector's decision to dismiss the planning appeal and to uphold the enforcement notice with corrections and variations, including the compliance period extension as effectively implemented by the Second Respondent's valid variation notice dated 8 May 2012. The court rejected the argument that the 4 May 2012 variation notice rendered the enforcement notice a nullity, emphasizing that defects must be apparent on the face of the notice to have such effect.

The decision confirms the principle that extrinsic evidence may be used to resolve ambiguity in detailed planning permissions and clarifies the application of nullity principles to enforcement notices varied under section 173A. No new precedent was established, and the direct effect is to affirm the lawfulness of the enforcement notice and the Inspector's decision in this case.