Secretary of State for Communities and Local Government v Ioannou

The agreed starting point in this appeal is, therefore, that the ground (a) appeal, the deemed application under subsection 177(5), and the power to grant permission under section 177(1) are of no assistance to the Respondent. The sole question is whether the Inspector erred in concluding that he did not have power to enable the implementation of the three flats scheme by allowing the appeal under ground (f), varying the steps required by the notice, and thereby enabling what remained after compliance with those requirements as varied to be treated as having been granted planning permission under section 73A by virtue of the operation of subsection 173(11).

On behalf of the Secretary of State, Mr. Banner submitted that:-

“The buildings or works” and “the activities” were those referred to in paragraph (a) of the subsection, namely those buildings or works which the enforcement notice “could have required to be removed”, or any activity which the enforcement notice “could have required to cease.” It followed that in order to benefit from subsection 173(11) the buildings or works, or the activities had to have been in existence when the enforcement notice was issued.

Subject to the point mentioned in paragraph 18 (above), Mr. Wills supported the Judge’s reasoning. He reminded us of the evolution of what is now paragraph (f) of subsection 174(2). Sections 15 and 16 of the Town and Country Planning Act 1968 (“the 1968 Act”) introduced new provisions as to enforcement notices into the Town and Country Planning Act 1962. Subsection 15(5) of the 1968 Act required an enforcement notice to specify:

“(a)

the matters alleged to constitute a breach of planning control; and

(b)

the steps required by the authority to be taken in order to remedy the breach…”

This was reflected in Subsection 16(1)(f), which enabled an appellant to appeal against an enforcement notice on the ground “that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control.”

It will be seen that under the 1968 Act there was no express power for the local planning authority to “under-enforce” such as is now conferred by subsection 173(3) of the 1990 Act, under which the local planning authority may specify steps in the enforcement notice in order to achieve, wholly or partly, the purposes of remedying either the breach of planning control or any injury to amenity which has been caused by the breach. The ground (f) appeal under the 1968 Act mirrored the inflexibility of subsection 15(5)(b). An appellant could not argue that even if the required steps were necessary to remedy the breach, they were not necessary to remedy any injury to amenity which had been caused by the breach. The present ground (f) appeal enables an appellant to argue that “under-enforcement” would suffice for the purposes of remedying any injury to amenity. Another illustration of the greater flexibility in the 1990 Act is the power under subsection 177(1) to grant planning permission for the whole or any part of the matters which are stated in the enforcement notice as constituting a breach of planning control or in relation to the whole or any part of the land to which the notice relates. Under subsection 16(5) of the 1968 Act the Minister’s power to grant planning permission was confined to “the development to which the enforcement notice relates….”

Carnwath LJ (as he then was) explained the background to the legislative changes which resulted in the greater flexibility now contained in the 1990 Act, and in the scope of the present ground (f) in particular, in paragraphs 29-33 of his judgment in Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744 [2007] 2 P & CR 7. Mr. Wills placed particular reliance on paragraph 33 of Carnwath LJ’s judgment in which he summarised the position under ground (f), as follows:

“33.

In short, the Inspector has wide powers to decide whether there is any solution, short of a complete remedy of the breach, which is acceptable in planning terms and amenity terms. If there is, he should be prepared to modify the requirements of the notice, and grant permission subject to conditions (or to accept a s.106 agreement, if offered). I would emphasise, however, that his primary task is to consider the proposals that have been put before him. Although he is free to suggest alternatives, it is not his duty to search around for solutions….”

In paragraph 34 of his judgment in Tapecrown Carnwath LJ said that the Inspector’s task was to decide:

“34.

… what was the appropriate solution. This required him to consider, not simply what would be necessary to bring the building into compliance with class A [of the GPDO], but more generally whether the building could be made acceptable in terms of both planning policy and amenity by any proposed modifications, supported if necessary by planning conditions.”

Mr. Wills also placed reliance on paragraph 46 of Tapecrown in which Carnwath LJ, having observed that it was not the duty of an Inspector to make an appellant’s case for him, said:

“46.

On the other hand the Inspector should bear in mind that the enforcement procedure is intended to be remedial rather than punitive. If on his consideration of the submissions and in the light of the site view, it appears to him that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it. In such circumstances fairness may require him to give notice to the parties enabling them to comment on it. I would expect the Inspectorate to have an established practice for dealing with that situation efficiently and expeditiously.”

While Carnwath LJ’s observations in paragraph 46 of Tapecrown were obiter, they were endorsed, and formed part of the Court’s reasoning in paragraph 40 of its judgment in Moore v Secretary of State for Communities and Local Government [2013] JPL 192; see Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566.

Mr. Wills submitted that if the ambit of the power conferred on an Inspector when dealing with a ground (f) appeal was no wider than his power in respect of a ground (a) appeal, ground (f) would be otiose. The three flats scheme was “an obvious alternative which overcame the planning difficulties” caused by the five flats scheme and it should, therefore have been considered by the Inspector under the second limb of the ground (f) appeal. The three flats scheme would remedy the injury to amenity which, on the Inspector’s findings, had been caused by the five flats scheme.

Against this background, Mr. Wills submitted that subsection 173(11) should be interpreted purposively, so that the scope of the permission deemed to have been granted under section 73A was not confined to any buildings or works, or activities that were in existence on the subject land when the enforcement notice was issued. Applying the Wheatcroft principle, section 173(11) applied to an alternative scheme, such as the three flats scheme, which was sufficiently similar to the development which was alleged by the notice to be a breach of planning control. Any other approach to the scope of section 173(11) would, he submitted, be punitive, and would not be consistent with the remedial character of enforcement proceedings: see Tapecrown (above).

Although Ouseley J referred in paragraphs 38 and 41 of his judgment (see paragraphs 12 and 13 above) to the need for the Inspector to consider the use of the power in section 173(4)(b), and his failure to do so, subsection 173(4) is directed at the local planning authority which issues the enforcement notice, and prescribes the purposes for which it may require steps to be taken by the notice. The Inspector’s power to allow an appeal under the second limb of a ground (f) appeal mirrors the power conferred on the local planning authority to under-enforce conferred by subsection 173(4)(b).

In concluding that the Inspector should have asked himself as a matter of fact and degree under the ground (f) appeal whether the three flats scheme was “substantially different” from the five flats actually developed (paragraph 44 of the judgment) Ouseley J applied the Wheatcroft principle. In my judgment, the Wheatcroft principle had no application in the present case. There is no challenge to Ouseley J’s conclusion that the principle had no application to the ground (a) appeal or to the deemed application in the light of the clear wording of section 177(1)(a): see paragraph 36 of the judgment. The power to allow an appeal under ground (f) in subsection 174(2) is not a power to grant planning permission. If planning permission is to be granted in response to an appeal under section 174 it may only be granted under section 177(1).

Wheatcroft has no application to any planning permission that section 173(11) treats as having been granted by virtue of section 73A because the scope of that permission is closely defined by the terms of both subsection 173(11) and subsection 73A(1) (see paragraph 10 above). Wheatcroft was concerned with an application for planning permission under (what is now) section 70 of the Act for a prospective development. Section 73A enables planning permission to be granted retrospectively “for development carried out before the date of the application.” While application of the Wheatcroft principle would enable a condition or conditions to be imposed upon a grant of permission under section 73A to cut down the extent of the existing development that was granted permission, it could not authorise a grant of planning permission for development that was proposed to be carried out, such as the three flats scheme.

In my judgment, Mr. Wills had no satisfactory answer to Mr. Banner’s submission that the only buildings, works or activities which can benefit from subsection 173(11) are those which were in existence when the enforcement notice was issued: see paragraph 19(iv) (above). The notice could not have required that which was not in existence when it was issued “to be removed”, or “to cease”. That submission is reinforced by the fact that the planning permission which subsection 173(11) treats as having been granted is a permission under section 73A, which relates to development which has been carried out, not development which is proposed to be carried out.

In Fidler v First Secretary of State [2004] EWCA Civ 1295 this Court rejected a submission that the permission which was treated as having been granted under subsection 173(11) extended to any activities which were taking place on the enforcement notice site which could have been, but were not, the subject of enforcement action. Carnwath LJ said that the draftsman of (what is now) subsection 173(11) had:

“43.

[I]ntroduced the pre-condition that the activity must have been one which the particular enforcement notice could have required to cease. It is not enough that it could have been the subject of enforcement action under a differently drafted notice. As Schiemann LJ observed, an enforcement notice cannot require an activity to cease, unless it is part of the breach of planning control identified by the notice itself. Not only is this interpretation supported by the wording of the section, it also makes practical sense for all parties. It ensures that the authority does not give deemed permission by an oversight; and, for those interested in the land, it provides clarity as to what is and is not permitted.”

Mr. Wills submitted that the question in Fidler was the extent of those buildings, works or activities which were in existence when the enforcement notice was issued which could benefit from subsection 173(11). The Court was not concerned with the issue in the present case: to what extent could an alternative scheme which would remedy the injury to amenity caused by a breach of planning control be permitted by virtue of the combined effect of allowing an appeal under ground (f) and the operation of subsection 173(11). That is true, but the wording of subsection 173(11) is clear, and Schiemann LJ’s observation “that an enforcement notice cannot require an activity to cease, unless it is part of the breach of planning control identified by the notice itself” is fatal to the Respondent’s case.

Mr. Wills urged us to adopt a purposive approach to the interpretation of subsection 173(11), but however purposive our approach it would not enable us to ignore the express terms of subsection 173(11) and section 73A. Moreover, I do not accept that a purposive approach to the interpretation of subsection 173(11) would assist the Respondent’s case. I accept Mr. Banner’s submission (paragraph 19(vii) above) that where Parliament has provided for planning permission to be granted in response to an appeal under section 174 against an enforcement notice, but has deliberately limited the scope of both the ground (a) appeal and the deemed application for permission to the matters stated in the enforcement notice as constituting a breach of planning control, and has limited the permission that may be granted under section 177(1) to the whole or any part of those matters, it would not be appropriate to sidestep that limitation by adopting an interpretation of subsection 173(11) which 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. That conclusion is supported by the role of the development plan in the decision–making process: see paragraph 19(viii) above.

I recognise that Carnwath LJ’s observations in Tapecrown (paragraphs 23-25 above) might suggest that an Inspector’s powers when considering an appeal under ground (f) are not subject to any such limitation, in particular, the following passage in paragraph 46:

“If…. it appears to [the Inspector] that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it”.

The passages relied upon by Mr. Wills in the judgments in these three cases must be understood in the context of the factual and legal issues that were in dispute in those cases. The judgments are a response to those issues, they are not to be applied as though they were enactments of universal application. In Ahmed the question was whether the “obvious alternative”, the 2005 scheme, could be regarded as “part” of the matters stated in the enforcement notice as constituting a breach of planning control. Richards LJ said in paragraph 32 of Ahmed that:

“The question of a grant of permission going beyond the terms of the notice does not arise.”

In paragraph 40 of Moore the point being made by the Court was that if there was an “obvious alternative” which the Inspector should have considered it did not matter that the appellant had put her case under ground (b) rather than ground (f). The Court concluded that there was, in fact, no “obvious alternative” (paragraph 41).

In Tapecrown the matter was remitted for reconsideration by the Secretary of State because the Inspector’s reasoning was inadequate in that he failed to consider whether the building and hardstanding which were the subject of the enforcement notice could be made acceptable in planning terms by (i) reducing the extent of the hardstanding, and (ii) blocking up the windows in the building. It appears to have been common ground that modifying the notice so as to require both of these steps to be taken would have been within the scope of the Inspector’s powers under ground (f), and the principal issue was the adequacy of his reasoning on this topic. Carnwath LJ was not establishing a free-standing “obvious alternative” test as a replacement for to the express statutory limitations imposed by subsections 177(1) and 173(11) upon the nature and extent of the planning permissions that may be, or be treated as having been, granted in response to appeals under section 174. The “obvious alternatives” which he had in mind were those “obvious alternatives” which (it was agreed in that case) would fall within the scope of a ground (f) appeal.

It is unnecessary to adopt a strained interpretation of subsection 173(11) in order to ensure that enforcement proceedings retain their remedial character. If, as in the present case, an alternative scheme is put forward which is not part of the matters stated in the enforcement notice as constituting a breach of planning control, but which the Inspector considers may well be acceptable in planning terms, he can follow the course which the Inspector adopted in the present case: allow the appeal under ground (g) and extend the period for compliance with the notice so that the planning merits of the alternative can be properly explored: see paragraph 7 (above). Local planning authorities usually issue enforcement notices as a last resort when persuasion and negotiation with the landowner has failed. It is open to a landowner who wishes to obtain planning permission for such an alternative scheme to apply for planning permission for that scheme at any time, whether before or after an enforcement notice has been issued. The local planning authority’s power in section 70C to decline to determine applications for planning permission made after an enforcement notice has been issued applies only if granting the permission would involve granting permission “in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.”

I do not accept Mr. Wills’ submission that this approach to the ambit of ground (f) renders that ground of appeal otiose. In its earlier form, under the 1968 Act, ground (f) was clearly much narrower than ground (a): it was not concerned with the planning merits of the matters alleged to constitute a breach of planning control, a question of planning judgment, but with what was essentially a factual question – what steps were necessary to remedy that breach: see paragraph 20 (above). The inclusion of the second limb in ground (f) – that even if they do not remedy the breach, less onerous steps will suffice because they will remedy any injury to amenity caused by the breach - means that deciding an appeal under ground (f) may well involve an element of planning judgment, which is bound to overlap to a certain extent with the Inspector’s judgment as to the wider planning merits under ground (a). That there is now a degree of overlap between the two grounds, (a) and (f), is recognised in the authorities relied upon by Mr. Wills: Tapecrown, Moore and Ahmed. It does not follow that ground (f) is otiose merely because there is now some overlap between the two grounds, in that injury to amenity is relevant under both grounds; nor does it follow that ground (f) is otiose because it cannot be used in conjunction with subsection 173(11) to secure for an alternative scheme a planning permission which is unobtainable under section 177(1).

For the reasons set out above, the Inspector’s conclusion that he did not have power to consider the three flats scheme under the ground (f) appeal was correct. Ouseley J’s judgment to the contrary must be set aside, and the Inspector’s decision restored.

In these circumstances it is unnecessary to consider the Secretary of State’s second ground of appeal, in which Mr. Banner submitted that Ouseley J was wrong not to have admitted the Inspector’s witness statement. I would merely endorse Ouseley J’s observation in paragraph 51 of the judgment:

“I would strongly discourage the use of witness statements from Inspectors in the way deployed here. The statutory obligation to give a decision with reasons must be fulfilled by the decision letter, which then becomes the basis of challenge. There is no provision for a second letter or for a challenge to it. A witness statement should not be a backdoor second decision letter. It may reveal further errors of law….”