Elmbridge Borough Council v Secretary of State for Communities And Local Government & Anor

This appeal raises issues concerning the breadth of the powers available to the Secretary of State to vary the terms of an Enforcement Notice upon appeal.

The Second Respondent, Giggs Hill Green Homes Limited, was the recipient of an Enforcement Notice (‘EN’) issued by the Appellant, Elmbridge Borough Council, in which the demolition of what was said to be an unauthorised development was sought, namely, of ten three-storey townhouses and associated works. An appeal was launched the result of which, in short, was that the Secretary of State’s Inspector varied the EN to require the development to comply with the planning permission originally granted for a similar (though less extensive) development. The Appellant appeals to this court pursuant to section 289 of The Town and County Planning Act 1990, seeking an order quashing that decision, on the basis that the Inspector exceeded his statutory powers by proceeding in that way. Permission to appeal was granted by Cranston J following an oral hearing on 9 December 2014. On 27 April 2015 the Secretary of State indicated by a letter from the Treasury Solicitor that it was conceded that the Inspector’s decision should be quashed. However, the Second Respondent does not accept that such a view is correct and has continued to resist the appeal.

The development site in question is known as Royal Thames House, Portsmouth Road, Thames Ditton in Surrey. It has been described as a trapezoidal parcel of land, extending to approximately 0.17 hectares, with frontages onto both Portsmouth Road (to the west) and Claygate Lane (to the east). The site is set within a predominantly residential area with some commercial, primarily office, uses. As built, the site comprises two rows of five three-storey terraced townhouses with associated basements and undercroft parking. One row of terraces faces onto Portsmouth Road and the other onto Claygate Lane. The terrace on the Portsmouth Road side is opposite a commercial office located to the north east of the site. The terrace on Claygate Lane is opposite two-storey residential dwellings located to the east. The adjacent terrace to the north comprises a mix of residential and commercial properties. To the south the site is bounded by a railway embankment leading up to the railway line which runs between Surbiton and Thames Ditton stations.

On 27 May 2008 the Second Respondent was granted planning permission on appeal by an inspector to demolish the existing offices on site and to erect nine three-storey residential units with basement parking. A number of conditions were attached to the grant of the permission the first of which was that the permitted development “shall begin before the expiration of three years from the date of this decision.” The other conditions related to the way in which the development was to take place. Conditions 2, 3, 8 and 9 each required that “[no] development shall take place until” samples of materials (Condition 2), details of hard and soft landscape works (Condition 3), a Construction Method Statement (Condition 8) and a scheme to avoid contamination (Condition 9) had been agreed in writing with the Appellant.

There is an issue about whether the development did indeed lawfully begin within the period specified in Condition 1 to which I have referred. The Second Respondent’s case is that the demolition of the original buildings on site began lawfully on 20 November 2010 or at some stage thereafter within the 3-year period from the date of the planning permission. The Appellant’s case is that it was never lawfully begun. I will return to this issue in due course.

Development on the site did indeed proceed, but as the description in paragraph 3 above indicates, the Second Respondent added a tenth residential unit and extended the basement area as a result of which the development exceeded that which was permitted by the permission to which I have referred.

It is of some relevance to note that the Second Respondent was engaging actively with the Appellant during the whole period up until the issue of the EN on 13 November 2013 and was in receipt of some favourable (albeit non-binding) indications from the Appellant as to the construction of the 10^th unit. Nonetheless, it built the additional unit and extended the basement without the formality of planning permission.

The Appellant confirmed in a letter dated 5 March 2010 that Condition 8 had been discharged and by letter dated 24 May 2011 that Conditions 2 and 3 were discharged. That letter indicated that Condition 9 could not be discharged at that time because there were other matters to be addressed.

The breach of planning control alleged in the EN was identified as follows:

“Without planning permission operations consisting of the construction of ten 3-storey town houses, foundations, undercroft parking and basements.”

The relevant parts of the EN were in the following terms:

3.

The breach of planning control alleged

It appears to the Council that the above breach of planning control has occurred within the last four years.

4.

The reasons for issuing this notice

The works were commenced in November 2010 and are still on-going today. They are not yet substantially complete.

On 27 May 2008, planning permission was granted on appeal (APP/K3605/A/08/2062919) for “... demolition of existing offices and erection of nine 3 storey residential units with basement parking at Royal Thames House, Portsmouth Road, Thames Ditton, in accordance with the terms of the application Ref. 2007/2165 dated 10 August 2007, and the plans submitted …”

The works that have been carried out relate to the development of 10 residential units, not the 9 permitted and do not accord with the submitted plans (foundations and piling are not as approved and basements and car  parking areas extend significantly beyond what was approved).

Enforcement action is required because the Council does not consider that it is appropriate to permit this development to proceed without planning permission. Local authorities have an administrative duty to control development in the public interest, particularly where the development has impacts that require mitigation and which gives rise to collection of the Council's Community Infrastructure Levy (CIL).

The National Planning Policy Framework advises (at paragraph 207) that, "effective enforcement is important as a means of maintaining public confidence in the planning system". The Commissioner for Local Administration (the local ombudsman) has held, in a number of investigated cases, that there is "maladministration" if the local planning authority fails to take enforcement action which is plainly necessary.

In deciding whether it is expedient to take enforcement action the Council must regard to the provisions of the Development Plan and to any other material considerations.

In the absence of an express grant of planning permission for the development the Council will be unable to collect CIL in accordance with Core Strategy Policy CS28 and the Council's Developer Contributions SPD (the Council has adopted a CIL tariff of £125 per sqm (net internal floor space) for all new residential development). It would be unacceptable for the Council's CIL to be avoided by unauthorised development.

Similarly, Policy CS21 of the Council's Core Strategy requires that development resulting in 6-14 residential dwellings should provide 30% on-site affordable housing. The unauthorised development is for 10 units but fails to make provision towards affordable housing in contravention of Policy CS21.

The unauthorised development that has been carried out may have adverse impacts for future residents and occupiers of neighbouring properties due to the potential impact from/on flooding as a result of the unauthorised underground car parking and basements contrary to Core Strategy CS26.

Necessary pre-development appraisals and analyses (possible flooding, contamination, harm to amenity of occupiers) have not been carried out in respect of the unauthorised development, and it will not be possible to control the development to adequately mitigate its impacts without an express grant of planning consent and the imposition of conditions.

The requirements of the EN were as follows: -

“(i)

Demolish the 10 unauthorised units and associated underground car parking and basements; and

(ii)

Remove from the Land all building materials and rubble arising from compliance with requirement (i).”

The period specified for compliance with the above requirements was 9 months.

This took place on the basis of written representations.

The Second Respondent’s case was advanced by Robinson Escott Planning LLP, Chartered Town Planners and Development Consultants, who submitted an ‘Appellant’s Statement’ dated 23 January 2014. Attached to it were various communications between the Second Respondent and the Appellant. In order to see the context in which the inspectors relatively briefly expressed decision was given, some of the arguments advanced on the Second Respondent’s behalf (and indeed some of those advanced by the Appellant) need to be recorded.

In relation to the undischarged Condition 9, the Second Respondent’s advisers dealt with the position in some detail in the Statement. In summary they drew to the inspector’s attention, in the first place, the fact that the Appellant had not issued any Breach of Condition Notice (‘BCN’) whilst the works had been proceeding and contended, in consequence, that the Appellant “was satisfied with the steps that the [Second Respondent] was taking in respect of this issue.” It then dealt with what were said to be changes in the construction approach arising from what was identified as a mistake in the location of a river culvert. What was required (after discussions with the Environment Agency) was the diversion of the culvert which ran across the full width of the site. This decision, it was said, had an impact on the pile shield required by Network Rail to protect the railway embankment. Against that background the following paragraph appeared at paragraph 3.10 of the Statement:

“As the Council is aware, in order to deal with the matters of contamination, the diversion of the river culvert and the pile shield, the whole site had to be excavated prior to the works in connection with the erection of the approved dwelling houses commencing. The demolition of the original office building and the excavation of the land constituted a commencement of the approved development and this matter is discussed in more detail below.”

It was asserted subsequently in the Statement that once a development had been “begun”, the permission granted it “is kept alive in perpetuity”. Reference was made to section 56 of the 1990 Act and to what is meant by the word “begun”. The following two paragraphs of the Statement demonstrate the case sought to be made in this regard:

“7.8

Section 56(4)(aa) makes clear that the development of the appeal site began with the demolition of the original building which occupied the site. At that point in time, the extant planning permission for the erection of 9 houses was lawfully implemented. It therefore lasts in perpetuity.

7.9

It was only subsequently that the appellant took the view that the additional excavation would allow for the provision of an increased area of basement and that an additional, tenth, dwellinghouse could be built above the entrance to the subterranean car park. Notably the latter view was taken following positive pre-application advice provided by the Council.”

The Statement went on to contend that the erection of nine of the ten residential units amounted to implementation of the original planning permission which could be amended subsequently. It was suggested that the Appellant was wrong to allege that the unlawful development was for the “erection of ten houses and an extended basement” and that the breach of planning control was “simply the erection of one additional dwelling house and the formation of an enlarged area of basement accommodation.” The contention was that the alleged breach of planning control had not occurred and that formed the basis for the Second Respondent’s Ground (b) appeal.

Ground (b) was the first of the grounds relied upon. No specific Ground (a) objection to the EN was taken. There would, of course, initially have been the deemed application for planning permission under section 177(5), but the fee was never paid in respect of that and, accordingly, the deemed application lapsed and there was thus no application for planning permission before the Inspector on the appeal. It will, of course, be understood that the position the Second Respondent was taking was that there was an extant planning permission which was capable of being amended. That position was emphasised in the alternative Ground (f) appeal to which I will turn briefly.

This ground was advanced without prejudice to the Ground (b) appeal and the Inspector was invited to consider it only if the Ground (b) appeal failed. The essential argument was that the EN over-enforced and that lesser steps should be prescribed, which would remedy the breach, making the development acceptable in planning terms. It was emphasised, in support of this ground, that there was an extant planning permission for the site and attention was drawn to the case of Ahmed (to which I will refer in more detail below), the contention being advanced that “the original planning permission for the nine unit scheme … remains extant whereas in the case of Ahmed, the previous planning permission had lapsed.” It was said that the case of Ahmed was “strikingly similar to that which is considered in this appeal save for the fact that the original permission in Ahmed had expired, whereas the original permission at this appeal site was lawfully commenced and lasts in perpetuity.” (At that stage only the first instance decision in Ahmed was available: [2013] EWHC 2084 (Admin).)

The Appellant’s response to the Ground (b) appeal in its statement was that, since the excavation of the basement (presumably in its extended form) began in February 2012 (which the Second Respondent had accepted) and had been part of one operation “the approved scheme was not implemented, and what has been built on site did not benefit from planning permission.” This was reinforced in the following passage in the response:

“The [Second Respondent] contends that the breach of planning control has not occurred as a matter of fact as the works and the construction of the tenth unit occurred after the implementation of the planning permission for the construction of nine houses at the site. This argument is fundamentally incorrect as the planning permission was never implemented due to the differing design of the basement and the construction of all ten units as part of the same works. The [Second Respondent was] advised of this scenario during the pre-application advice and during the enforcement investigation where it was made clear that any works to the tenth unit prior to the substantial completion of the approved development would potentially render the tenth unit as an amendment to the approved scheme and therefore would not allow for this to be applied for as a separate unit. Notwithstanding the above it is considered that the [2008 planning permission] was not implemented as the basement is substantially different to that approved and as this is an integral part of the development. Accordingly the whole scheme does not benefit from planning permission and is unauthorised. This view is supported by the [Second Respondent’s] own response to the PCN.”

The Appellant’s Statement (which was dated “January 2014”) made no reference to Ahmed or any of the other cases referred to in the Second Respondent’s ‘Appeal Statement’.

The Appellant’s response to the Ground (f) appeal (incorrectly identified in the statement as Ground (g)) was as follows:

“It is noted that the developer has suggested that the steps to remedy the breach could be achieved through the demolition of the tenth unit and the infilling of the additional area of the basement. It is up to the inspector to consider whether such an approach is appropriate. However the LPA consider that the planning permission as approved … was never implemented as the development on site clearly does not accord with the approved plans due to the fundamentally different basement design and the construction of 10 houses as opposed to 9. This planning permission has now expired. Without the works on site benefiting from and being in accordance with an extant planning permission the development cannot be adequately controlled through conditions. The LPA maintains that the only way to ensure the development is carried out in accordance with the approved plans and with appropriate conditions is for it to be implemented in accordance with an approved planning permission.”

Thus expressed, whilst reference is made to the alleged lack of an “extant planning permission”, the response does not appear directly to challenge the power of the Inspector to take a course that avoided total demolition if he thought it appropriate.

The issue was, however, revisited in the context of the further submissions invited by the Inspector to which I will now turn.

The decision of the Court of Appeal in Ahmed (SSCLG v. Ahmed [2014] EWCA Civ 566) was handed down on 7 May 2014. The Inspector invited submissions from the parties on the implications of that decision in a letter from the Inspectorate dated 11 September 2014.

The Appellant responded in a response dated 18 September 2014. The Second Respondent did not respond.

The position taken by the Appellant in relation to the implications of Ahmed is, it seems to me, of some importance. In essence what was said was that Mr Ahmed, having obtained permission on 7 June 2005 for the construction of a three storey block of flats, had built out a building of four floors, incorporating an additional flat and with a different roof from that required by the approved plans. Because it had never been “validly implemented” the 2005 permission had lapsed and the Council had, therefore, served an enforcement notice requiring removal of the entire building. This interpretation of what took place in that case was repeated in the response when it was said that “the original 2005 permission had expired (and had not been implemented – Mr Ahmed had built out another, different development that did not accord with the approved plans)”. What the Appellant said was that “the situation in Ahmed is obviously very similar to the situation the inspector is faced with in this case, where the 2008 permission has now lapsed, having not been validly implemented” (my emphasis).

It does appear that it was common ground in Ahmed, and had never been disputed at any stage, that whatever development Mr Ahmed began when he began it, it was not the development permitted by the 2005 planning permission and, accordingly, there was no “lawful commencement” of the development. This is clear from [11] and [12] of the judgment of Richards LJ, with whom Underhill and Floyd LJJ agreed:

11.

On 7 June 2005 planning permission was granted on appeal for the demolition of an existing property on the land and the erection of a three storey building with a butterfly roof, comprising a retail unit on the ground floor and six flats on the two upper storeys. The terms of the permission required the development to begin within five years of the date of the grant.

12.

Construction began in 2007 and was completed in 2009. The building erected was not, however, in accordance with the approved plans: in particular, it had four storeys, providing space for a seventh flat and with a different roof arrangement. The consequence of the departure from the approved plans was that the building was in breach of planning control and also that its erection did not constitute lawful commencement of the development permitted by the 2005 planning permission, so that the 2005 permission expired on 7 June 2010.”

In that case, therefore, the question of whether there was a lawful implementation of the original planning permission was not in issue. As will be apparent from paragraphs 16, 17 and 19 above, the Second Respondent was plainly asserting that, whatever may have occurred later in the development programme, there was lawful implementation of the 2008 permission whereas it will be clear from paragraphs 20-22 and 27 above that the Appellant was contending that there was no lawful implementation. In this case, therefore, there was such an issue.

I was not addressed by Counsel on the extensive jurisprudence that exists on whether, notwithstanding breaches of a planning permission, there can have been an effective and lawful implementation of a planning permission such that the permission is to be regarded as extant (see generally, Planning Encyclopaedia, Vol. 2, P56.01-P56.13), nor indeed was the Inspector invited specifically to consider any of the issues thrown up by that jurisprudence.

I will return to this issue when I have drawn attention to the way in which the Appellant dealt in its further submissions with the Ground (f) appeal and to the conclusions of the Inspector.

As to the Appellant’s more detailed response to the Ground (f) appeal, it drew attention to the following paragraph in the judgment of Richards LJ in Ahmed:

“I agree with [Counsel for the Secretary of State] that the power under section 177(1) to grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control is linked to an appeal under ground (a) rather than under ground (f). But Mr Ahmed’s appeal included express reliance on ground (a) and he would have been deemed in any event to have made an application for planning permission by virtue of section 177(5) as it existed as the material time. Although his ground (a) appeal sought planning permission only in respect of the development as built, which constituted the whole of the matters stated in the notice as constituting a breach of planning control, the power under section 177(1) was to grant planning permission “in relation to the whole or any part of those matters”. In principle, therefore, planning permission could have been granted for the 2005 scheme if the differences between it and the development as built (i.e. the differences identified in the notice as “unauthorised additions, alterations and variations to the approved scheme”) were such that a development in accordance with the 2005 scheme could be regarded as a “part” of the development as built. This was a matter of planning judgment for the inspector. It was a judgment he did not make because of his failure to give any consideration to the possibility of granting planning permission for the 2005 scheme. This court is not in a position to decide what conclusion he would have reached if he had considered that possibility. In particular, we cannot exclude the possibility that he might reasonably have concluded that the 2005 scheme was to be regarded as “part” of the development as built, on which basis he would have had power under section 177(1) to grant planning permission in relation to it.”

It then went on to say this:

“13.

So it was within the power of the inspector in that case – where an appeal had been made under ground (a) and the planning application fee had been paid - to vary the notice and grant permission for something less than what was being sought by the appellant, provided that what was permitted could be regarded as “part” of the development as built. This is, of course, entirely consistent with the position in respect of an appeal pursuant to section 78 of the Act, where an inspector may grant a more limited permission, provided it forms “part” of what was applied for.

14.

But the crucial point is that an inspector can only grant consent pursuant to section 177 of the Act if the appellant has applied for permission pursuant to section 174(1)(a) and paid the requisite planning application fee ….”

…

16.

Given that the appellant has not specified ground 174(2)(a) in its appeal, the alternative of granting planning permission (either for the 10 house scheme or the revised 9 house scheme) is not open to the inspector in this case (and the appellant clearly wants to avoid a further grant of permission in any event).

17.

The alternative of granting permission for the built scheme or a reduced scheme (which formed “part” of the built scheme) had been open to the inspector in the Ahmed case. And as the Court of Appeal noted in Ahmed, it was clearly crucial to their decision that there was an appeal under ground (a) (see paragraph 31 of the judgment). The absence of an appeal under ground (a) is similarly crucial in this case.”

The statement then went on to refer to what was suggested to be the motivation of the Second Respondent to press ahead with the development, but returned to what might be termed “the jurisdictional issue” in this way:

“24.

The [Second Respondent] contends that “even if was to be found that the 2008 planning permission at the appeal site had expired, that would not preclude the inspector from varying the notice to require that the development conforms to its provisions”. However, the only way the inspector could achieve this would be if he or she were able to grant planning permission for the 2008 proposal (permission for which has now lapsed).

25.

Without an appeal pursuant to ground (a) he/she cannot do so. The 2008 scheme has not been validly implemented. The development carried out is therefore unlawful development ….

26.

The appellant could have submitted an appeal pursuant to ground (a); but it chose not to do so, just as it chose not to submit an application pursuant to section 73 of the Act to vary the 2008 appeal permission (because this would have given rise to a new consent and would have triggered infrastructure contributions), and just as it chose not to implement the 2008 planning permission referred to in section (c) below (again, because this would have required it to make the infrastructure payments that are referred to in condition 1 of that permission).

27.

Without a ground (a) appeal, the inspector does not have the alternatives that were open to the inspector in Ahmed. The only solution is therefore for the development to be removed in its entirety. The only way for this solution to be avoided is for the appellant to obtain a planning permission (either pursuant to a normal application or pursuant to a ground (a) appeal) which, if granted, would enable the works carried out (or some of them) to remain.” (Footnote: ¹)

The reference in the quoted paragraph 26 to the “2008 planning permission referred to in section (c) below” was a reference to a planning permission dated 18 March 2008 Condition 1 of which, it was said, “required infrastructure payments amounting to £103,176.41 to be paid to the [the Appellant] upon implementation of the development”. It was asserted that the permission “has never been implemented and has therefore lapsed”.

I have quoted this response in some detail because it demonstrates that the clear position that the Appellant was taking at this stage on the jurisdiction of the Inspector was that without a Ground (a) appeal or an effective deemed application for planning permission he had no power to adopt a solution other than that the development is “removed in its entirety”. The submissions available to him are important in determining what he decided.

The Inspector’s decision letter was dated 21 October 2014. His response to the three grounds advanced by the Second Respondent were as follows:

“Ground (b)

4.

…. Nine conditions were imposed. Condition 1) is 

the normal three-year time limit for the commencement of development.  Condition 9) states “Development shall not begin until a scheme to deal with contamination of the site has been submitted to and approved in writing by the local planning authority” and “Development shall not begin until measures approved in the scheme have been implemented”.

5.

The basis of the [Second Respondent’s] ground (b) appeal is that the breach of planning control alleged in the notice has not occurred as a matter of fact, due to the work involved in the construction of the tenth unit commencing after the implementation of the permission for the construction of the nine units. They agree there has been a breach, but do not accept that it is the one described in the notice, their contention being that the breach is “simply the erection of one additional dwellinghouse and the formation of an enlarged area of basement accommodation”. 

6.

I consider that the following conclusions should be drawn from the facts and from the case law to which my attention has been drawn and the further cases about which I consulted the parties: -

(a)

Work on site began in 2010 and by 27 May 2011 the demolition of the existing offices had been completed and piling mats had been laid. 

(b)

The pre-commencement conditions have all been complied with, since the pre-commencement elements of Condition 9 have been met to the extent required by the Council. 

(b)

Much of the work carried out is as depicted on the approved plans, but the basement area is a lot larger than shown, and now incorporates basement accommodation, and the Claygate Lane terrace has been built with an additional unit over the entrance to the basement parking area. These are substantial changes, which have all been made during the course of a continuous process of work, and they raise issues relevant to planning, including assessments of flood risk and land contamination and standards of residential amenity. 

(c)

In deciding whether the work carried out is authorised, I am to look at what has been done as a whole and reach a judgement as a matter of fact and degree on that whole. Looked at in this way, in my planning judgement the work that has been carried out is so different from what was approved that it does not constitute the implementation of the 2008 permission. 

(d)

It follows that the matters alleged in the notice to be a breach of planning control have occurred. The appeal on ground (b) has therefore failed.

Ground (f) 

7.

The [Second Respondent] maintain that the requirement to demolish all ten units and the underground car parking and basements is excessive. They consider that a requirement to demolish the tenth unit and infill the extended parts of the basement, so that the development would conform with the permission, is all that is necessary. The Council have doubts about the efficacy of this approach.  As they have pointed out, requirements directed only at the differences could lead to an unconditional planning permission being granted under s 173(11) once the requirement has been complied with.

8.

The requirements of the notice would result in the loss of nine residential units, which appear to have been built substantially in accordance with the plans approved in 2008, apart from the basement accommodation. Their demolition is an outcome that should be avoided unless there are no other means of remedying the breach of planning control.

9.

The enforcement procedure is intended to be remedial. When work is carried out that differs substantially from approved plans, with the result that the  development as a whole is unauthorised, provision is made by section 173(4)(a) for the breach of planning control to be remedied by making the development comply with the terms (including conditions and limitations) of the permission. Condition 1) does not in my opinion prevent the adoption of  this approach in this instance and there should be no difficulty in compliance, since the differences between the work carried out and what was authorised are clear-cut and the work needed to make the development comply with the permission has already been identified.

10.

I have therefore varied the first requirement of the notice so that it requires the development to comply with the permission. The appeal has succeeded on ground (f) to this extent.

Ground (g)

11.

The request for a longer compliance period now needs to be dealt with in the light of this variation. I have extended the period from nine months to twelve months, firstly, because the work required is now more complex and, secondly, because the [Second Respondent’s] representations indicate that a further planning application, or applications, may be submitted and sufficient time should be allowed for this to be done and the decision-making process to take place. The appeal has therefore succeeded on ground (g) to this extent.”

The Inspector directed that the EN be varied by replacing the paragraph requiring the demolition of the buildings with the following paragraph:

“Make the operations comply with the terms (including the conditions and limitations) of the planning permission granted on 27 May 2008 ….”

The Appellant, through Mr Scott Stemp, develops the argument made in the initial response and the further submissions invited by the Inspector, namely, (i) that there was no extant planning permission in play before the Inspector since the 2008 permission had not been implemented and had lapsed and (ii) in those circumstances the Inspector had no power to remedy any breach by seeking to make the works comply with the terms of a previous planning permission since there was no effective planning permission in existence.  Equally, the absence of a Ground (a) appeal or an effective deemed application for planning permission made it impermissible for the Inspector to consider general planning considerations when determining the Ground (f) appeal.  For that latter proposition he placed reliance on SSETR v. Wyatt Brothers (Oxford) Ltd [2001] EWCA Civ 1560 and SSCLG v. Ioannou [2014] EWCA Civ 1432 as well as Ahmed.

On the issue of whether the development was implemented lawfully from the beginning he submits that this is a question of fact and degree, drawing attention to the approach of Ouseley J in Commercial Land, etc., v SSTLG&R [2002] EWHC 1264, and submits that it is clear that the Inspector concluded that the planning permission had never been implemented lawfully. He contends that the Inspector’s conclusion that “the work that has been carried out is so different from what was approved that it does not constitute the implementation of the 2008 permission” is indicative of his view that, taken as a whole, what had been constructed was not the beginning of the development permitted by the 2008 permission. He also says that the Inspector would not have used the words in the second sentence of paragraph 9 of the decision letter if he had concluded that there had been lawful implementation of that permission. He contends that the Inspector would have spelled out clearly that there was an extant planning permission had he intended so to conclude. He drew attention to the pre-commencement conditions and suggested that beginning the work on 20 November was before any of the conditions had been complied with and, accordingly, the commencement could not have been lawful.

Mr Andrew Fraser-Urquhart QC, for the Second Respondent, also accepts that the issue is one of fact and degree for the Inspector, but says that the Inspector made a judgment on the issue of whether or not the May 2008 permission had been implemented, not whether it had been commenced. I assume that he would add the word “lawfully” after each of those words. The decision letter, he submits, considered the 2008 permission in the context of the Ground (b) appeal, namely, whether the final outcome of the development was something which was not a development in breach of planning condition. The Inspector, he submits, made no finding that the May 2008 permission had not been lawfully commenced and had thus expired. By contrast, he contends that what the Inspector does say suggests that the development had indeed been commenced in compliance with the planning permission. He draws attention to paragraph 6(b) where it states that all the pre-commencement conditions had been complied with and that “[much] of the work is carried out is as depicted on the approved plans.” This was, he submitted, the language of implementation.

Mr Fraser-Urquhart argues that these are the clearest possible indications that the Inspector considered the development commenced in accordance with the 2008 planning permission. He also makes the point that the Appellant had contended clearly in its statement that the 2008 permission had expired and had the Inspector accepted this “he would surely have made findings as to the consequence of that fact” in the decision letter, but did not do so. He also submitted that any works done in furtherance of the development prior to 26 May 2011 would have represented a lawful commencement because all pre-commencement conditions (except Condition 9 which was being actively discussed at the time) had been discharged by then. He said that the Inspector was plainly not concerned that these matters rendered the commencement improper or unlawful because of the way he rehearsed them in paragraph 6(a) and the first (b).

Mr Fraser-Urquhart might, one supposes, have added that the Inspector, if persuaded of the argument that he could not act as he did in the absence of an extant planning permission, must be taken to have concluded that there was such a permission still in existence.

In a formal sense I am not determining whether the reasons given by the Inspector in relation to the question of implementation of the 2008 permission were adequate. The Appellant suggests that they were adequate and support the conclusion for which it contends. Equally, the Second Respondent contends that they were also clear and support the position for which it argues. In my view, it would be idle to pretend that there is not some force in each of these arguments. Whilst the position each side took on this issue in the appeal to the Inspector was clearly deployed in their respective submissions, those submissions were not, perhaps, articulated as fully as they might have been and the Inspector might reasonably have expected more assistance than he received. One disadvantage of the written representation procedure is that the person who must assess and evaluate these submissions does not obtain the benefit of the emphasis that can be deduced from hearing oral argument.

Without intending to be critical, to my mind there is no part of the decision letter from which it could clearly be determined that the issue of whether the 2008 permission was still extant had been addressed explicitly and an unambiguous decision reached. I accept that there is an apparently clear conclusion that there has not been implementation of the permission, but there is equally sufficient “language of implementation”, to borrow Mr Fraser-Urquhart‘s expression, in other parts of the letter to leave one in doubt about the true conclusion on this issue. If looked at in this way, I think that the reasoning would not meet the criteria set out in the well known case of South Bucks District Councilv Porter (No 2) [2014] 1WLR 1953.

I do not, of course, know why the Secretary of State has conceded that the decision reflected in the decision letter must be quashed. He will only have seen the arguments of the Appellant in favour of quashing the decision (which will doubtless have persuaded Cranston J to grant permission to appeal), but, of course, he may have taken the view he did on wider grounds. However, as it seems to me, if the decision must be quashed and reconsideration must take place, one aspect of the reconsideration would be whether, as a matter of fact, there was lawful implementation of the 2008 planning permission in the sense reflected in at least some of the authorities to which I have referred obliquely in paragraph 30 above.

My conclusion however, is that, on the basis of the decision letter as it stands, I cannot accept Mr Fraser-Urquhart‘s proposition that the issue as to the continued existence of the 2008 planning permission was determined conclusively in the Second Respondent’s favour and that, accordingly, the other issues raised in the appeal to me do not arise.

I will turn to those other issues.

I have summarised Mr Stemp’s essential argument in relation to this at paragraph 39 above. He says, in addition, that section 173 does draw a clear distinction between an enforcement notice that sets out to remedy a breach of planning control and one which is designed to remedy “any injury to amenity which has been caused by the breach” and that the EN in this case was simply addressed to the former with the result that its variation to amend the steps required by it in order for the works to comply with a lapsed planning permission does not remedy the breach of planning control and was not within the Inspector’s powers on a Ground (f) appeal. He submits that this was tantamount to granting planning permission for those matters which is impermissible in light of Wyatt and Ioannou (see paragraph 39 above).

Mr Fraser-Urquhart submits that even if the 2008 planning permission had lapsed, the Appellant’s challenge to the Inspector’s decision depends on there being a rigid division in the taking of enforcement action between an enforcement notice directed at remedying a breach of planning control and those directed at remedying harm to amenity (see section 173(4)(a) and (b)) which, on proper analysis, does not exist. As a matter of law, he submits that section 173 simply provides that an enforcement notice must be aimed at some permitted purpose which are set out in sub-sections 4(a) and (b), but sub-section (3) merely states that such a notice must specify the steps to be taken “in order to achieve, wholly or partly, any ofthe following purposes” (his emphasis). He contends that there is nothing in those words to confine an enforcement notice simply to one of the objectives in sub-sections 4(a) and 4(b). Indeed he says that the EN in this case deals with both and cites the final two paragraphs of the reasons for the notice as being addressed to amenity issues.

Whilst Mr Fraser-Urquhart’s submission is attractive in its simplicity, it seems to me that the weight of authority (certainly authority binding upon me) is against it. I need not extend this judgment by lengthy citations from other cases. Suffice it to say that the following paragraphs of the judgment of Kennedy LJ in Wyatt (with which Mummery and Sedley LJJ agreed) conclude the matter unless modified authoritatively in some subsequent case: [26], [28] and [32]. Wyatt has not subsequently been doubted and indeed has been referred to with approval in Ioannou and Ahmed. It is, of course, correct to say that there are features of the judgment of Carnwath LJ, as he then was, in Tapecrown Ltd v. First SoS [2007] 2 P&CR 7 which suggest a less rigid approach to these matters, but there is nothing in that case that casts doubt on the general principle established in Wyatt.

For those reasons, briefly expressed, I do not consider that the Inspector did have the power to act as he did in the particular circumstances (and on the basis that there was no extant planning permission) and, accordingly, the decision reflected in the decision letter must be quashed.

Given that conclusion, I do not think it is necessary to come to a conclusion on ground 2 of the Appellant’s grounds of appeal, namely, that the Inspector failed to give consideration as to whether or not the EN as varied adequately regulated the activities which it required.

As I have indicated, had I been able to conclude that the Inspector found as a fact that there was still in existence a valid planning permission (and that such a conclusion had evidence to support it), then I would have been able to uphold the EN as varied. Equally, had there been a Ground (a) appeal and/or a deemed planning application before the Inspector, his decision could have been upheld. However, neither situation obtained. Since I consider that Mr Stemp’s analysis of the authorities summarised in paragraph 39 above is correct the Inspector’s reasoning cannot stand.

The Inspector’s view of what he plainly felt was the disproportionate nature of the enforcement action is not a matter that is the subject of challenge in this appeal. Had it been, it would almost certainly have failed. Mr Fraser-Urquhart has made a persuasive case that there are intrinsic planning merits to the 10-unit development and, whilst views might reasonably differ about those merits, it would be difficult to see how the Inspector’s view could be characterised as irrational or beyond the bounds of reasonableness.

I would merely express the hope that some meaningful discussions ensue to bring this matter to a conclusion. It will require some give-and-take on both sides. If the true focus is on the CIL contribution that the Appellant says would be payable in the new situation, some lateral thinking may be required to find an acceptable solution to that.

However, the net effect is that this appeal is allowed, the decision reflected in the decision letter is quashed and the matter is to be sent back to the Secretary of State for reconsideration.

I should like to express my appreciation to Mr Stemp and Mr Fraser-Urquhart for their succinct and helpful submissions.