Ioannou v Secretary of State for Communities and Local Government and another

Town and country planning – Enforcement notice – Appeal – Local planning authority issuing enforcement notice in respect of conversion of single dwelling to five flats – Appellant’s planning inspector dismissing appeal against notice and rejecting property owner’s alternative scheme for three flats – Inspector’s decision overturned – Whether inspector having power to permit three-flat scheme by variation of enforcement notice on appeal under section 174(2)(f) – Whether inspector erring in failing to consider that option – Appeal allowed The respondent appealed against an enforcement notice issued by the local planning authority alleging a breach of planning control by the unauthorised conversion of a single family dwelling-house into five self-contained flats. The respondent relied on several of the statutory grounds of appeal in section 174(2) of the Town and Country Planning Act 1990, including ground (a), that planning permission should be granted for the development struck at by the notice, and ground (f), that the notice requirements exceeded what was necessary to remedy the breach of planning control or the injury to amenity caused by that breach. In relation to ground (a), he contended that planning permission should be granted for an alternative scheme comprising only three flats. The appeal was dismissed by the appellant’s planning inspector, who took the view that: (i) the only available course under ground (a) was to grant or refuse planning permission for the works complained of in the enforcement notice, rather than some other scheme; and (ii) the ground (f) appeal failed since nothing short of the works specified in the notice would be sufficient to remedy the breaches of planning control. That decision was subsequently overturned in the High Court: see [2013] EWHC 3945 (Admin); [2014] EGILR 10. The judge held that, while the three-flat scheme could not be achieved on the ground (a) appeal, the inspector had been obliged to consider as an “obvious alternative” whether that scheme could brought about on the ground (f) appeal, by varying the notice to remedy only the injury to amenity pursuant to section 173(4)(b), which, when combined with section 173(11), would result in a grant of retrospective planning permission under section 73A for any remaining breaches of planning control. The judge held that the three-flat scheme could be permitted if, as a matter of fact and degree, it was not “substantially different” from the five flats actually developed on an application of the principle in Bernard Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P&CR 23; [1981] 1 EGLR 139; (1980) 257 EG 934. The appellant appealed. Held: The appeal was allowed. It was not open to the inspector to grant permission for the three-flat scheme on the ground (f) appeal. The power to allow an appeal on ground (f) in subsection 174(2) was not a power to grant planning permission. The Wheatcroft principle did not apply to any planning permission that section 173(11) treated as having been granted by virtue of section 73A, because the scope of that permission was closely defined by the terms of those sections. Section 73A enabled planning permission to be granted retrospectively for development carried out before the date of the application. Since the planning permission that section 173(11) treated as having been granted was a permission under section 73A, relating to development that had already been carried out, the only buildings, works or activities that could benefit from section 173(11) were those in existence at the time when the enforcement notice was issued. The notice could not have required the removal or cessation of things that were not in existence at that time. The permission that was treated as having been granted under section 173(11) did not extend to any activities taking place on the site that could have been, but were not, made the subject of enforcement action: Fidler v First Secretary of State [2004] EWCA Civ 1295; [2004] PLSCS 234 applied. It followed that, while the Wheatcroft principle would enable a condition or conditions to be imposed on a grant of permission under section 73A to cut down the extent of the existing development for which permission was granted, it could not authorise a grant of planning permission for development, such as the three-flat scheme, that was proposed to be carried out. It was therefore irrelevant whether the three-flat scheme was “substantially different” from the five flats actually developed. If planning permission were to be granted in response to an appeal under section 174, that could only be done under section 177(1). Parliament had deliberately limited the scope of the ground (a) appeal to the matters stated in the enforcement notice as constituting a breach of planning control, and had limited the planning permission that could be granted under section 177(1) to the whole or any part of those matters. It would be inappropriate to sidestep that limitation by adopting an interpretation of section 173(11) that would, when taken in conjunction with a successful ground (f) appeal, have the effect of granting a planning permission for matters other than those specified in the notice as constituting the breach of planning control. If an alternative scheme was put forward which was not part of the matters stated in the enforcement notice as constituting a breach of planning control, but which the inspector considered potentially acceptable in planning terms, the inspector could allow the appeal on ground (g) and extend the period for compliance with the notice, so that the planning merits of the alternative could be properly explored. Local planning authorities would usually issue enforcement notices as a last resort, when persuasion and negotiation with the landowner had failed, and a landowner who sought planning permission for such an alternative scheme could apply for planning permission for that scheme at any time, whether before or after an enforcement notice had been issued. Charles Banner (instructed by the Treasury Solicitor) appeared for the appellant; Jonathan Wills (instructed by Kingsley Smith Solicitors LLP) appeared for the respondent.   Sally Dobson, barrister   Click here to read transcript: Ioannou v Secretary of State for Communities and Local Government and another