Miaris v Secretary of State for Communities And Local Government & Anor (Rev 1)

This is an appeal under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) on a point of law against a decision by an Inspector appointed by the Secretary of State, Mr Simon Hand MA, to uphold an enforcement notice issued by Bath and North East Somerset Council in respect of 14 North Parade, Bath.

The appeal raises a point of law of general application to appeals against such notices. When planning permission is not sought for any of the matters constituting a breach of planning control to which such a notice relates, may the Secretary of State entertain an appeal against the notice on the basis that any of the steps it contains exceed what is necessary to remedy any injury to amenity caused by the breach and, if so, in what circumstances?

Permission to bring this appeal was granted by Mr Robin Purchas QC sitting as a Deputy High Court Judge on April 30^th 2014.

The Council issued the enforcement notice that has given rise to the appeal in this case on July 10^th 2013. It related to premises, known as Opa, that have a lawful use as a restaurant. The notice alleged that there had been a breach of planning control by the making of a material change in the use of Opa from a restaurant to a mixed use of restaurant, drinking establishment and nightclub.

The substantive reasons stated in the notice why the Council considered it expedient to carry out enforcement action were that:

“b)

The change of use of the restaurant to a mixed use of restaurant, bar and nightclub has resulted in an increase in pedestrian movements and a change to the pattern and timeframe of movements outside the premises. This has resulted in a detrimental effect upon the well-being of residents of nearby residential properties contrary to policy D2 of the Bath and North Somerset Local Plan...and the aims of the National Planning Policy Framework (Paragraph 58).

c)

The change of use of the restaurant to a mixed use of restaurant, bar and nightclub has resulted in an increase in noise, vibration and disturbance. This adverse effect upon health, the environment and general amenities of the area is contrary to policy ES12 of the Bath and North East Somerset Local Plan...and the aims of the National Planning Policy Framework (Paragraph 123).”

The enforcement notice required three things to stop. These were: (a) use of Opa as a drinking establishment; (b) use of Opa as a nightclub; and (c) DJs being allowed to perform at Opa.

The Appellant, Mr Stamatios Miaris, who is the owner of the premises, appealed to the Secretary of State against that notice. He did not appeal on the ground that the breach of planning control alleged had not occurred. Nor did he appeal on the ground that planning permission should be granted for the matters that constituted the breach of planning control alleged in the notice or any of them. An earlier application to change the use of the premises to a mixed use of restaurant, bar and nightclub had been refused by the Council on July 8^th 2010.

The Appellant’s sole ground of appeal was that the steps required to comply with the requirements of the notice were excessive. The Appellant did not take issue with the requirement to cease using Opa as a nightclub. He accepted that that requirement was reasonable and necessary to overcome the Council’s objections. The Appellant contended, however, that the requirement to cease using Opa as a drinking establishment was excessive. The premises had a premises licence for the sale of alcohol until 2am. The Appellant wanted, so he said, the flexibility to operate as a restaurant with the sale of alcohol to non-diners as a subsidiary element to enable his business to remain economically viable, something that he asserted accorded with the National Planning Policy Framework. He contended that a lesser step to overcome the objection to a drinking establishment, which would ensure that the permitted A3 restaurant use would be the primary use, would be to limit the number of customers who enter the premises and do not eat to 60 at any one time. The Appellant also contended that the requirement not to allow a DJ to perform at Opa served no useful purpose as the playing of music, whether it was live or recorded, was not restricted by the notice and as there was a noise abatement order in force in relation to the premises which provided sufficient protection. It was also unjustified given its effect on local jobs.

The Council justified the requirements in question because they were linked to a change in the character of the use of the premises from a venue where patrons sit down and eat a meal to a party venue attracting patrons looking for a lively night out. The requirement to cease using the premises as a drinking establishment made it clear that it should not be so used and the limitation suggested by the Appellant would in any event be impossible to enforce. The requirement in relation to DJs was necessary to restrain future use as a nightclub since a key part of that use was music played by a DJ. That was usually louder and of a different character than background music normally found in restaurants. The Council contended that “clear requirements are necessary to ensure that the unauthorised activities cease and do not recur.”

The Inspector dismissed the appeal against the enforcement notice in a letter dated March 7^th 2014. In it he stated that:

“3.

Ground (f), which is the only ground of appeal in this case, is the appropriate ground where an appellant seeks to argue that the steps required by the Notice exceed what is necessary to remedy the breach of planning control or, as the case may be, to remedy the injury to amenity which has been caused by any such breach.

4.

In this case there is no ground (a) appeal or deemed application. Consequently, the appeal under ground (f) cannot be turned into something else by arguing, for example, that the amenities of neighbours are not harmed by drinking at the building or that a single themed night is not harmful (The case of Secretary of State for the Environment, Transport and the Regions v Wyatt Brothers (Oxford) Ltd [2001] EWCA Civ 1560 refers). Accordingly I have been unable to take account of the general planning considerations raised by the appellant as these are more appropriate to an appeal on ground (a).

5.

Requirement (a) is to stop using Opa as a drinking establishment. The argument against this, that additional patrons attracted only for drinking would not be harmful, is a matter of planning merits. Similarly the suggestion that a limit on the number of customers to the restaurant who have a drink but no food would overcome the problem also assumes a decision has been made as to what number of customers would be acceptable, again one I cannot make without considering the merits of the case. Although I would add that had I been able to do so the enforceability of such a condition or limit would seem to present considerable problems.

7.

Requirement (c) is to stop DJs. The argument against this is that it is excessive as there is nothing in the notice that restricts live music and a DJ playing music is no different from a pre-programmed music system. There is a noise abatement order in force at the premises and this provides sufficient control to prevent any excess noise, hence whether a DJ is employed or not is irrelevant. However, I agree with the Council that a DJ is not generally found at a restaurant use but is part and parcel of a nightclub. The objective of the notice is to turn Opa back into a restaurant from the nightclub use into which it had apparently morphed. Preventing a DJ therefore is directly related to the allegation and does not seem excessive in this context.”

A local planning authority is empowered to issue an enforcement notice by virtue of section 172(1) of the 1990 Act

“where it appears to them -

(a)

that there has been a breach of planning control; and

(b)

that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.”

There is a breach of planning control when “development” is carried out without the required planning permission (Footnote: ¹). Such development includes the making of a material change in the use of any buildings or other land (Footnote: ²).

The Town and Country Planning (Use Classes) Order 1987 specifies certain classes of use for the purposes of development control. A change of use within each class does not constitute development but changes between them will do if material. These classes include Class A3 Restaurants and cafes, “Use for the sale of food and drink for consumption on the premises”, and Class A4 Drinking establishments, “Use as a public house, wine-bar or other drinking establishment”. Neither of these classes includes use as a nightclub (Footnote: ³). Development consisting of a change of use of a building to a use falling within Class A3 from a use falling within Class A4 is generally permitted development subject to certain conditions (Footnote: ⁴). But a change of use from Class A3 to Class A4 is not such generally permitted development.

An enforcement notice issued by a local planning authority must state “the matters which appear to the local planning authority to constitute the breach of planning control” (Footnote: ⁵). The notice is also now required specify “(a) the reasons why the local planning authority consider it expedient to issue the notice” and “(b) all policies and proposals in the development plan which are relevant to the decision to issue an enforcement notice” (Footnote: ⁶).

Further section 173 of the 1990 Act provides that:

“(3)

An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4)

Those purposes are -

(a)

remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b)

remedying any injury to amenity which has been caused by the breach.

(5)

An enforcement notice may, for example, require-

(a)

the alteration or removal of any buildings or works;

(b)

the carrying out of any building or other operations;

(c)

any activity on the land not to be carried on except to the extent specified in the notice; or

(d)

the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.”

Section 173(3) envisages that the steps required by an enforcement notice may be ones for the purpose of remedying any breach of planning control or for the purpose of remedying any injury to amenity constituted by the matters constituting the breach. The steps required in any one notice need not be limited to only one of these purposes. The “or” at the end of section 173(4)(a) is not fully disjunctive and is to be read as meaning “and/or”: see Wyatt Bros (Oxford) Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1560, [2002] PLCR 18, (“Wyatt Bros”) at [22]. It should be noted, however, that there is no requirement for an enforcement notice to contain any statement indicating whether the local planning authority has specified any step relying on paragraph (a) or paragraph (b) in section 173(4) or both.

By also providing in section 173(3) that steps may be specified “to achieve wholly or partly” the purposes set out in subsection (4), the legislation envisages that a local planning authority may decide to “under-enforce”. They may decide to seek to remedy only part of any breach of planning control; they may decide not to seek to remedy the breach but only to remedy any injury to amenity it may have caused; or they may decide only to seek to remedy part of the injury to amenity it may have caused.

To deal with matters that constituted the breach of planning control that could have been remedied in the enforcement notice but were not in such cases of “under-enforcement”, section 173(11) of the 1990 Act provides that:

“(11)

Where -

(a)

an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b)

all the requirements of the notice have been complied with,

then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.”

This deemed permission extends only to matters in existence when the enforcement notice was issued and that form part of those specified in an enforcement notice as constituting the breach of planning control to which the notice relates. It does not to any other matters which could have been included in the notice: see Fidler v First Secretary of State [2004] EWCA Civ 1295, [2005] 1 P&CR 12 at [35], [41]-[44]; Secretary of State for Communities and Local Government v Ioannou [2014] EWCA Civ 1432, [2015] 1 P&CR 10, (“Ioannou”) at [30]-[32]. It should be noted, however, that the permission deemed to be granted under subsection (11) is not subject to any condition nor is there any power to impose one on it.

A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal against the notice to the Secretary of State. Such an appeal may be brought on any of the grounds set out in section 174(2) of the 1990 Act. These include:

“(a)

that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b)

that those matters have not occurred;

(c)

that those matters (if they occurred) do not constitute a breach of planning control;

(d)

that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e)

that copies of the enforcement notice were not served as required by section 172;

(f)

that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

... ....”.

Section 177 of the 1990 Act further provides that:

“(1)

On the determination of an appeal under section 174, the Secretary of State may-

(a)

grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates;

....

(2)

In considering whether to grant planning permission under subsection (1), the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject matter of the enforcement notice, and to any other material considerations.

(3)

The planning permission that may be granted under subsection (1) is any planning permission that might be granted on an application under Part III.

(5)

Where an appeal against an enforcement notice is brought under section 174 and-

(a)

.....

(b)

that land is in England and the statement under section 174(4) specifies the ground mentioned in section 174(2)(a),

the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control.

(6)

Any planning permission granted under subsection (1) on an appeal shall be treated as granted on the application deemed to have been made by the appellant.”

Section 174(2)(a) falls to be construed in conjunction with section 177(1)(a) of the 1990 Act. It would be absurd if ground (a) was construed as allowing an appeal only on the basis that planning permission should be granted in respect of all the matters to which the notice relates when the Secretary of State may grant permission in respect of any of them and the Appellant may not seek permission for all of them. Thus an appeal may now be brought under ground (a) on the basis that planning permission should be granted in relation to all or any of the matters said to constitute the breach of planning control: see R (Matthews) v Secretary of State for Communities and Local Government [2014] EWHC 1299 (Admin) (“Matthews”) at [61]-[64].

The Secretary of State’s power to grant permission under section 177(1)(a) on the determination of the appeal, however, only arises on the application for permission that is deemed to be made when an appeal is made on ground (a): see section 177(5)(b) and (6). It does not now arise when an appeal is brought on any other ground, such as (as in this case) ground (f). Moreover an appellant may have to pay a fee for bringing an appeal on ground (a) which will lapse if any prescribed fee in respect of that deemed application is not paid within the period that the Secretary of State has specified by notice in writing to the appellant. Thus section 177 further provides that:

“(5A) Where-

(a)

the statement under subsection (4) of section 174 specifies the ground mentioned in subsection (2)(a) of that section;

(b)

any fee is payable under regulations made by virtue of section 303 in respect of the application deemed to be made by virtue of the appeal; and

(c)

the Secretary of State gives notice in writing to the appellant specifying the period within which the fee must be paid,

then, if that fee is not paid within that period, the appeal, so far as brought on that ground, and the application shall lapse at the end of that period.”

The fee normally payable to the local authority in respect of the deemed application is now twice the amount which would have been payable had an application been made to the authority (Footnote: ⁷). The fee payable on the deemed application is refundable on the determination of the appeal in certain circumstances. These include cases where the Secretary of State allows the appeal on grounds (b) to (f) but not on ground (a) (Footnote: ⁸). No doubt this provides an incentive to submit an application for any planning permission required before the development was carried out and before the authority finds it expedient to serve the notice.

The legislation also provides an incentive to appeal on ground (a) if planning permission is required. If the appeal against an enforcement notice is dismissed, it may not be possible to obtain a planning permission subsequently for any of the matters that constituted the breach of planning control. Section 70C of the 1990 Act provides that:

“(1)

A local planning authority in England may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

(2)

For the purposes of the operation of this section in relation to any particular application for planning permission, a “pre-existing enforcement notice” is an enforcement notice issued before the application was received by the local planning authority.”

The Secretary of State’s general powers on determining an appeal against an enforcement are contained in section 176 of the 1990 Act which provides that:

“(1)

On an appeal under section 174 the Secretary of State may-

(a)

correct any defect, error or misdescription in the enforcement notice; or

(b)

vary the terms of the enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.

(2)

Where the Secretary of State determines to allow the appeal, he may quash the notice.

(2A) The Secretary of State shall give any directions necessary to give effect to his determination on the appeal.

....

(5)

Where it would otherwise be a ground for determining an appeal under section 174 in favour of the appellant that a person required to be served with a copy of the enforcement notice was not served, the Secretary of State may disregard that fact if neither the appellant nor that person has been substantially prejudiced by the failure to serve him.”

On behalf of the Appellant, Mr Jonathan Wills contended that the enforcement notice procedure is intended to be remedial rather than punitive. Any proposed or obvious alternatives that would overcome planning difficulties caused by any unauthorised development should be considered on their merits: see Tapecrown Limited v First Secretary of State [2006] EWCA Civ 1744, [2007] 2 P&CR 7 (“Tapecrown”); Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202, [2013] 3 EGLR 91 (“Moore”); Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566, [2014 2 EGLR 197 (“Ahmed”); and Ioannou. In this case, for example, the Appellant appealed only on the ground that requiring the use of the premises as a drinking establishment to cease would exceed what was required to remedy any injury to amenity caused by the breach of planning control and that instead a requirement not to use the premises as a nightclub or as drinking establishment for more than 60 customers at any one time who have not entered the premises to eat would suffice for that purpose. That limitation on its use as a drinking establishment should have been considered on its merits but it was not. Moreover, because having a DJ does not require planning permission, it would not have been something on which an appeal on ground (a) could have been brought in any event.

Section 174(1)(f) permits an appeal to be brought on the ground that what is required exceeds what is necessary to remedy any breach of planning control “or, as the case may be,” to remedy any injury to amenity. Mr Wills submitted that the phrase, “as the case may be”, refers to whichever basis an appellant chooses to rely on and that, if an appeal is brought on the basis that a step specified in an enforcement exceeds what is required to remedy any injury to amenity caused by the breach of planning control, then the Secretary of State must consider its merits, even if there is no appeal on ground (a) seeking planning permission for any element of the unauthorised development. Ground (f) is a ground of appeal that can be invoked whether or not ground (a) is and a failure to invoke ground (a) does not reduce the scope for an appeal under ground (f). Wyatt Bros does not have the effect that the Inspector thought it had.

If that primary submission is inconsistent with the decision in Wyatt Bros (which Mr Wills contended it was not), then, so he submitted, the Secretary of State is precluded from considering an appeal under ground (f) on the basis that the steps exceed what is required to remedy any injury to amenity on its merits in the absence of an appeal under ground (a) only if the only purpose of the specified steps is to remedy the breach of planning control. Where as here, so he contends, the steps were specified to remedy the injury to amenity caused by the breach, or at least partly for that purpose, as illustrated by the amenity considerations referred to in reasons for issuing the notice and the requirement relating to DJs, the contention that they exceed what it is necessary for that purpose must be considered on its merits. In any event, so he submits, the Inspector failed to ask himself what purpose the specified requirements served before declining to consider the planning merits of the Appellant’s case.

Mr Wills submits, therefore, that the Inspector erred in law by refusing to take into account the planning merits advanced by the Appellant in relation to the two specified steps in issue. In effect, therefore, he submits that the Inspector only considered whether the steps were necessary to remedy the breach of planning control and failed to consider whether they were necessary to remedy any injury to amenity that the breach had caused.

If the notice had been varied to impose the limitation the Appellant proposed on the use of the premises as a drinking establishment, then, so Mr Wills submitted, once the requirements of the notice had been complied with, planning permission would be treated (by virtue of section 173(11) of the 1990 Act) as having been granted to use the premises as a drinking establishment for up to 60 such customers at any one time. If the Inspector had considered that the amended requirements would suffice to remedy any injury to amenity associated with the mixed use that was the subject of the enforcement notice, then (so Mr Wills submitted) he would have had a discretion under section 176 of the 1990 Act whether or not to vary the notice. In exercising that discretion the Inspector would be bound to consider all material planning considerations if there were remaining objections not related solely to amenity.

On behalf of the Secretary of State, Ms Estelle Dehon submitted that, although the Appellant had not sought planning permission for the mixed use that constituted the breach of planning control, in effect he had sought planning permission for a different mixed use containing components of it, namely a mixed use as a restaurant and drinking establishment. The Inspector had correctly understood the effect of the decision in Wyatt Bros. When an appeal is made only on the ground that a requirement of the notice exceeds what is necessary to remedy any injury to amenity caused by the breach of planning control, the Secretary of State has no power to consider the planning merits, in the absence of an appeal under ground (a), when the steps are required to remedy a breach of planning control. The power to vary the terms of the notice does not afford a power to achieve what may be achieved on an appeal on the ground (a), when there is no such appeal.

She submitted that the cases on which Mr Wills relies to suggest that alternatives must be considered on their merits are all ones in which there was an appeal on both ground (a) and ground (f) and in which the extent of the Secretary of State’s powers when an appeal is made only on ground (f) was not in issue. Wyatt Bros has not been overruled but was referred to without disapproval in some of the cases on which Mr Wills relied and it was followed in Mata v Secretary of State for Communities and Local Government [2012] EWHC 3473 (Admin), [2013] JPL 546 (“Mata”) and Elmbridge Borough Council v Secretary of State for Communities and Local Government and Giggs Hill Green Homes Limited [2015] EWHC 1367 (Admin) (“Elmbridge”) at [39], [49]-[52].

In this case, so she submitted, the requirements of the notice were directed at remedying the breach of planning control. The fact that the reasons given for serving an enforcement notice may have referred to injury to amenity does not mean that the purpose of the steps required was partly to remedy that injury: see Mata at [15]. The Inspector was moreover entitled to take the view he did about the requirement relating to DJs and its inclusion in the steps specified in the notice: see Somak Travel Ltd v Secretary of State for the Environment (1988) 55 P&CR 250.

As Carnwath LJ stated in Tapecrown at [46], the enforcement procedures now contained in the 1990 Act are “intended to be remedial rather than punitive”.

Alternative requirements to those specified in an enforcement notice that are proposed or that may be obvious and which will overcome planning objections may require consideration on their merits on any appeal against an enforcement notice, as was suggested, for example, in Tapecrown at [34] and [46], Moore at [39]-[40]; and Ahmed at [2] and [22]-25]. But it does not follow that all such alternatives can be considered within the framework of such an appeal. Whether they can be depends inter alia on the matters constituting the breach of planning control alleged; the purpose of the steps specified in the notice; the grounds on which the appeal is made, and the alternative in question. Statements in some judgments that may suggest that any such alternatives can always be considered on their merits have to be read, as Sullivan LJ stated in Ioannou at [35], “in the context of the factual and legal issues that were in dispute in those cases”.

Thus, in Ioannou, for example, a single family dwelling house had been converted without the necessary permission into five self-contained residential units. The enforcement notice required that use to cease. The alternative step proposed involved the creation of three self contained flats, a result preferable in planning terms to the use of the property as a house in multiple occupation (to which it could be put lawfully if the enforcement notice was upheld). There was no power to grant planning permission for a scheme to produce the three flats (two of which did not exist) under ground (a), as the works required were not part of the matters alleged to constitute the breach of planning control alleged in the notice: see paragraph [18] above and Ioannou at [11]. The Court of Appeal held that there was no power on the appeal under ground (f) to vary the steps required so as to implement the scheme, with what remained (once that requirement had been complied with) being treated as permitted by virtue of section 173(11) of the 1990 Act. That sub-section could not be construed so as to grant a planning permission for matters other than those specified in the notice as constituting the breach of planning control: see per Sullivan LJ (with whom Rafferty and Lloyd Jones LJJ agreed) at [30]-[33]. Accordingly “ground (f)...cannot be used in conjunction with subs.173(11) to secure for an alternative scheme a planning permission which is unobtainable under s.177(1)”: per Sullivan LJ at [39]. The alternative proposed could thus only be considered on an application for permission that could be made at any time to the local planning authority. It could not be considered on its merits within the enforcement notice appeal. The most that might be done on such an appeal was to extend the time for compliance with the requirements of the notice to allow such an application to be considered if that was thought appropriate.

Further, in all the cases in the Court of Appeal on which Mr Wills relies to support his contention that alternative requirements that are proposed or that may be obvious and which will overcome planning objections require consideration on their merits, as Ms Dehon pointed out, the Secretary of State was able to consider not merely an appeal on ground (f) but also whether planning permission should be granted.

In my judgment Mr Wills’ primary submission is inconsistent in particular with the judgment of the Court of Appeal in Wyatt Bros. In that case the Court took the phrase “as the case may be” (in section 174(1)(f)) to refer to the purpose for which the relevant requirements had been specified by the local planning authority under section 173(3) and (4), the structure of which paragraph (f) mirrors. Moreover, as the decision of the Court of Appeal in that case shows, the Secretary of State may have no power to consider an appeal made on the basis that the requirements of the steps specified in the notice exceed what is necessary to remedy the injury to amenity caused by the breach on its merits when there is no appeal seeking planning permission on ground (a).

In Wyatt Bros the appeal against the enforcement notice on ground (a) had lapsed as the relevant fee had not been paid. The appeal was pursued, however, on ground (f). The Inspector found in that case that the requirements in the enforcement notice were “framed on the basis of” paragraph (a) in section 174(4), namely to remedy the breach of planning control. Given that, he ruled at the Inquiry that evidence and submissions which were not relevant to the question whether the steps exceeded what was necessary to remedy the breach would be inadmissible, thereby excluding consideration of whether the steps exceeded what was necessary to remedy any injury to amenity that the breach of planning control had caused (Footnote: ⁹). That ruling was held to be correct by the Court of Appeal.

In the Court of Appeal the Appellant contended that “when...an appeal is brought on the ground in section 174(2)(f) then it is always open to the appellant to contend that the steps required by the notice to be taken exceed what is necessary to remedy any injury to amenity which has been caused by the breach.” That contention, which Mr Wills’ primary submission echoes, was rejected by the Court of Appeal. Kennedy LJ (with whose judgment Mummery and Sedley LJJ agreed) said that:

“26 ......ground (f)..... will only be considered in a situation where a breach of planning control is established and planning permission ought not to be granted. In such a situation ground (f) cannot sensibly be interpreted in such a way as to enable the appellant to present in support of that ground evidence and arguments as to planning merits which, if not already rejected, should have been presented in support of ground (a).

27.

The arguments presented to us were similar to those presented in the court below, and in paragraph 50 of his judgment H.H. Judge Rich said:

‘An appeal on the ground of exceeding what is necessary to remedy injury to amenity is available, in the absence of a deemed planning application, only if the steps required by the notice are solely for the purpose of removing or alleviating injury to amenity which has been caused by the development.’

28.

For the reasons I have given the use of the word “solely” renders that proposition too restrictive, but having regard to the unassailable finding that in this case all of the steps required were for one of the purposes specified in section 173(4)(a) ...the Inspector's ruling was right..”

The reasons previously referred to by Kennedy LJ were that the word “or” at the end of section 173(4)(a) was not fully disjunctive and should be read “and/or”, thereby permitting steps to be specified in an enforcement notice to remedy both any breach of planning control and any injury to amenity it may have caused: see at [22].

Mr Wills’ primary submission is also inconsistent with two subsequent cases in which Wyatt Bros was applied.

In Mata a building was erected for business purposes without planning permission. The appellant did not appeal on ground (a) and he failed to pay the prescribed fee in respect of the deemed application. On his appeal under ground (f), it appears that the appellant contended that the building could have been erected under permitted development rights had it been constructed for a purpose incidental to the dwelling in whose garden it had been built and that the notice should be varied so as to require only the removal of certain internal items so as to overcome the local planning authority’s concerns about the provision of self contained backland accommodation. The Inspector refused to consider the merits of works that might bring the building physically within the scope of the relevant permitted development retrospectively. He found that the local planning authority’s purpose in issuing the notice was to remedy the breach of planning control and that they considered that the only remedy was to require its demolition. The Inspector dismissed the appeal on ground (f). He thought it was not open to him to substitute lesser steps that would leave the unauthorised building in place. (Had it been left in place, the building could have continued to be used for business purposes (Footnote: ¹⁰), inconsistently with the permitted development rights (Footnote: ¹¹), and despite the local planning authority’s concerns that the development would be out of keeping with the form and character of development in the locality.) The Inspector’s decision was upheld on appeal. HHJ Bidder QC, sitting as a Deputy High Court Judge, found that the fact that the reasons for serving the enforcement notice referred to injury to amenity on more than one occasion did not mean that the steps were required at least in part to remedy injury to amenity; that the purpose of the all steps required was to remedy the breach of planning control, and that the decision in Wyatt Bros provided a complete answer to the appeal.

In Elmbridge, the local planning authority served an enforcement notice in respect of the unauthorised construction of 10 three storey townhouses and associated works (which included basements and undercroft parking). Conditional planning permission had previously been granted to erect 9 three-storey residential units with basement parking. What was in fact constructed included a more extensive basement area with different associated works and a tenth residential unit. The enforcement notice required the demolition of the 10 unauthorised units and associated car parking and basement. There was no appeal on ground (a) and no fee paid in respect of the deemed application for planning permission. The local planning authority contended in relation to the appeal on ground (f) that the development could only be made acceptable given provision of affordable housing and financial contributions and further analyses of issues concerning possible flooding, contamination and harm to the amenity of occupiers: see [10], [22], [34]-[35], [56]. The Inspector found that, although 9 of the residential units had been built substantially in accordance with the approved plans (apart from the basement accommodation), the works undertaken did not constitute the implementation of the planning permission. He decided on the appeal under ground (f), however, to vary the steps in the notice to make what had been constructed comply with the permission granted. The Inspector’s decision was found to be erroneous in point of law by Foskett J. He accepted the Council’s case that the steps in the notice were to remedy the breach of planning control; that the variation would not remedy the breach; and that it was impermissible in the light of the decisions in Wyatt Bros and Ioannou for the Inspector to consider the planning merits of what would remain once works proposed in the variation had been carried out: see [39], [49]-[52] and [54].

In my judgment Wyatt Bros, and both these case, show that the Secretary of State may have no power to consider an appeal made under ground (f) on the basis that the requirements of the notice exceed what is necessary to remedy the injury to amenity caused by the breach on its merits when there is no appeal seeking planning permission on ground (a). Accordingly I reject Mr Wills’ primary submission.

Mr Wills’ alternative submission is based on the fact that, in Wyatt Bros, the Court of Appeal was concerned with steps that had all been specified by the local planning authority for the sole purpose of remedying the breach of planning control and that the Court of Appeal recognised that an appeal on the basis that the steps exceeded what was necessary to remedy any injury to amenity caused by the breach was possible in other cases: see paragraph [40] above.

An enforcement notice may relate to more than one breach of planning control and it may contain more than one step in respect of any breach of planning control. Some of the steps in an enforcement notice may be directed at remedying a breach of planning control; others may be directed at remedying any injury to amenity another breach may have caused. Similarly it is possible for one step to be directed at remedying a breach and for another to be directed at remedying any injury to amenity that that same breach may also have caused. Given the decision in Wyatt Bros, Mr Wills accepted, in my judgment correctly, that an appeal on the ground that a step exceeds what is necessary to remedy any injury to amenity could not be considered on its merits if that was no part of the purpose for which that step was specified by the authority. But, so Mr Wills submitted, the Secretary of State is precluded on the basis of the decision in Wyatt Bros from considering on its merits an appeal on the basis that any step specified in the enforcement notice exceeds what is necessary to remedy any injury to amenity only if the only purpose of that step is to remedy the breach of planning control. Where as here, so he contends, the relevant steps were each specified wholly, or at least in part, to remedy the injury to amenity caused by the breach of planning control, the contention that either exceeds what it is necessary for that purpose has to be considered on its merits.

I accept that a step specified in an enforcement notice may in fact serve the purpose both of remedying a breach of planning control and of remedying any injury to amenity that it causes. For example the only objection to an unauthorised development may be the injury to amenity it causes. In such a case a step that remedies the breach of planning control involved (whether wholly or partly) is one that also serves to remedy the injury to amenity which the breach has caused. Similarly there may also be cases in which a step to remedy the breach serves not merely to remedy any injury to amenity which the breach may have caused but also to provide a remedy given other planning objections to the matters constituting that breach. Thus, for example, a requirement to cease an unauthorised, inappropriate use of land in the Green Belt may not only remedy any injury to amenity which that activity may have caused but it may also give effect to the policy that such uses are harmful in planning terms even if they cause no such injury. Although a step specified in an enforcement notice may in fact serve the purpose both of remedying a breach of planning control and of remedying any injury to amenity that it causes, it is necessary not to lose sight of the fact, however, that planning objections to any of the matters constituting the breach may remain even if any injury to amenity that it may cause is eliminated.

In my judgment an appeal under ground (f) made on the basis that any step contained in an enforcement notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control cannot be entertained on its merits when (i) there is no appeal under ground (a) that planning permission should be granted and (ii) the planning objections which that step addresses are not limited to any injury to amenity. Were an appeal on such a ground to be entertained, making it good would of itself provide no rational basis for quashing the notice (if it is the only requirement) given the remaining, unconsidered planning objections. Nor would it provide any rational basis for varying the notice to delete or vary the requirement (if it is only one of them). Other planning objections, to what would then have to be treated by virtue of section 173(11) as having been given planning permission, would never be considered on their merits.

Mr Wills sought to avoid such results by contending that the Secretary of State would retain a discretion under section 176 of the 1990 to decide whether or not to allow the appeal (and to quash the notice or delete or vary the requirement) if satisfied that the step exceeds what is necessary to remedy any injury to amenity. That discretion would be one to be exercised having regard to all material considerations including any other planning objection there may be to the matters constituting the breach of planning control.

In my judgment, the Secretary of State appears to have been given no such discretion.

But, even if these provisions could be taken to contain a discretion that might be of relevance, in my judgment it is not one that could be exercised in the manner in which Mr Wills’ submissions require without subverting the legislative scheme.

For these reasons in my judgment an appeal under ground (f) made on the basis that any step contained in an enforcement notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control cannot be entertained on its merits when (i) there is no appeal under ground (a) that planning permission should be granted and (ii) the planning objections which that step addresses are not limited to any injury to amenity.

This conclusion is supported by one of the decisions on which Mr Wills relied, Tapecrown. The decision in this case is in any event distinguishable from Wyatt Bros (which was not mentioned by members of the Court). Although no appeal against the enforcement notice had apparently been made on ground (a), the making of the appeal gave rise to a deemed application for planning permission: see per Carnwath LJ at [9]. Accordingly, when dealing with an Inspector’s role on an appeal under ground (f), Carnwath LJ was addressing what the Inspector should do “on such an appeal”, namely one in which he had the opportunity to grant planning permission. In that connection Carnwath LJ said (in a judgment with which Hughes and Wilson LJJ agreed) that:

“30.

The enforcement provisions, in their present form, largely follow the recommendations of my 1989 report Enforcing Planning Control. They in turn took account of amendments made in 1981, which I regarded as useful but “somewhat confused”. There remained an unresolved dispute as to the extent to which the authority could (a) “under-enforce”, that is, require something less than a complete remedy of the breach of planning control; or (b) impose alternative requirements to alleviate the effects of the breach. I proposed that there should be “a broad discretionary power to deal with the effects of a breach”, and that the grounds of appeal should reflect that approach (Enforcing Planning Control HMSO 1989, pp.73-4).

31.

I believe that this objective has been achieved, although the drafting might perhaps have been clearer. Section 173(3) allows the steps required by the enforcement notice to be directed to achieving “wholly or partly” any of the purposes referred to in subs.(4) . Those purposes are, in summary, remedying the breach, or remedying “any injury to amenity” caused by the breach. In so far as the notice requires less than a full remedy of the alleged breach, there is provision for a deemed permission for what is left after compliance (s.173(11)).

32.

There is a possible gap here. Repairing the damage to amenity may be only part of what is needed. Even a physically unobtrusive development may be objectionable in planning terms, but it may be made more acceptable by steps short of total demolition. That is the province of ground (a), which needs to be read with s.177 . The latter makes clear that, on an enforcement appeal, planning permission may be granted in respect of the matters alleged in the notice “in relation to the whole or any part of those matters” (s.177(1)(a)); that for this purpose ordinary planning considerations (including the development plan) must be taken into account (s.177(2)); and that the permission is to be treated as though granted on an application (s.177(3)(6)), and so (at least by implication) may be subject to any necessary conditions.

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).”

In paragraph [32], Carnwath LJ recognised that planning objections to a development are not necessarily limited to damage to amenity and that the grant of planning permission on an appeal under ground (a) may also be necessary to overcome them. Thus, as paragraph [33] of his judgment indicates, it may be possible to overcome such other planning objections by granting planning permission and modifying the requirements of the notice so that what results is acceptable in both planning and amenity terms.

In my judgment an appeal under ground (f) made on the basis that any step contained in an enforcement notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control may be entertained in the absence of an appeal under ground (a), however, if that step is one solely to remedy any injury to amenity. There is no intelligible reason in such circumstances why it should not be considered on its merits.

On the other hand, if the step is one that addresses any planning objection that do not include any injury to amenity resulting from the breach of planning control, then, in the absence of an appeal under ground (a), the appeal under ground (f) on that basis would be irrelevant.

This analysis focuses on what planning objections it is the purpose of any step in an enforcement notice to remedy. It is not determined by the particular paragraph in section 173(4) on which the local planning authority may have relied to specify the step.

In Mata and Elmbridge, however, the assumption appears to have been made that the crucial question in Wyatt Bros concerns which paragraph in section 173(4) has been relied on to specify the steps in question. In my judgment that is not what the decision in that case establishes. It is important to note that in that case the Court of Appeal did not consider the submissions made to it about what the position would have been if one of the purposes for which the requirements had been specified was to remedy (or at least in part to remedy) injury to amenity, as the Court thought it was too late to contend that the requirements in that case were specified, whether wholly or in part, for such a purpose: see at [24] and [28]. Accordingly the decision can only be treated as one that an appeal on ground (f) is not to be entertained on the basis that any requirement exceeds what is necessary to remedy any injury to amenity (in the absence of an appeal on ground (a)) when the purpose or purposes for which the requirements were specified do not include remedying any injury to amenity. In such a case there are necessarily other planning objections which the requirements are to remedy. What the decision does not establish, therefore, is that, if the only purpose for which a requirement is imposed is to remedy any injury to amenity, an appeal on ground (f) is not to be entertained on the basis that it exceeds what is necessary to remedy any injury to amenity (in the absence of an appeal on ground (a)) merely because the requirement is specified under paragraph (a) of section 173(4).

In Mata (already considered in paragraph [42] above) the local planning authority’s reason for issuing the notice included both “general planning and amenity considerations” and HHJ Bidder appears to have rejected the contention that the purpose of the steps was in part at least to remedy injury to amenity caused by the breach: see [15], [17]-[18]. In Elmbridge (already considered in paragraph [43] above) the purpose of the steps specified by the Council were plainly not limited to remedying any injury to amenity caused by the breach of planning control. In neither of those two cases, therefore, did the Court have to consider whether a step specified relying on section 173(4)(a) solely in order to remedy the injury to amenity caused by the breach of planning control could be the subject of an appeal on the merits under ground (f), in the absence of an appeal under ground (a), on the basis that the step exceeds what is necessary to remedy that injury.

If the question whether an appeal on ground (f) can be entertained on the basis that the steps it contains exceed what is necessary to remedy any injury to amenity in the absence of an appeal on ground (a) turns on which paragraph in section 173(4) has been relied on to specify the steps in question, the result would introduce a degree of technicality inconsistent with the flexibility intended when the current legislation was introduced following Lord Carnwath’s report Enforcing Planning Control (see paragraph [53] above) and it could also subvert the scheme of the legislation.

There are also some practical difficulties in treating the question whether an appeal on ground (f) can be entertained on the basis that the steps it contains exceed what is necessary to remedy any injury to amenity (in the absence of an appeal under ground (a)) as dependent on which paragraph in section 173(4) has been relied on to specify the steps in question.

In this case Mr Wills submits that the reasons for serving the enforcement notice (that are set out in paragraph [5] above,) and the requirement to stop allowing DJs to perform, were directed at remedying the harm to amenity caused by the breach of planning control.

In my judgment the requirement not to allow DJs to perform at the premises is not of practical significance to the outcome of this appeal. The Inspector found in effect that a performing DJ was not an ordinarily incidental and ancillary feature of a restaurant use. That finding was one that he was entitled to make as a matter of planning judgment. He also found that the requirement that DJs should not be allowed to perform at the premises was one designed to remedy the breach of planning control involved in using the premises as a nightclub and was not excessive for that purpose. The Appellant did not appeal to the Secretary of State against the requirement to cease using the premises as a nightclub. Nor has he appealed against the inclusion of this requirement in the enforcement notice on the basis that there was no power to include it in addition to the requirement to cease using the premises as a nightclub if it was an element of that use (as the Inspector found).

The real issue on this appeal concerns the step requiring the use of the premises a drinking establishment to stop. That step could have been specified under paragraph (a) of section 173(4) in order to remedy the breach of planning control by discontinuing that use of the land but, if the only planning objection to that use had been the injury to amenity resulting from it, then it might have been specified also or instead under paragraph (b). The notice itself does not say which paragraph was relied on in specifying the step or whether both were. Nor did the local planning authority’s submissions to the Inspector.

Mr Wills made no attempt to argue that the requirement to stop using the premises as a drinking establishment could not have been specified relying on paragraph (a). But, on the assumption that the Inspector’s decision could only be justified in law if the requirement had been specified relying on paragraph (a) in section 173(4), Mr Wills submitted that the Inspector erred in law by failing to ask himself whether it had in fact been specified under that paragraph and in failing to determine the question. That is not a ground, however, on which the Appellant has sought or been granted permission to appeal. Had such a ground been raised, the local planning authority might have produced evidence that showed that they relied on only paragraph (a) and that, even if the Inspector had failed to ask himself the question Mr Wills submits that he should have done, his failure did not make the decision impugned erroneous in point of law in any material respect. In those circumstances, in my judgment, this is not a ground of appeal that is open to the Appellant.

For the reasons I have already given, however, Mr Wills’ submission that the relevant requirement was directed at remedying injury to amenity needs to be considered. The reasons why the Council served the enforcement notice indicate plainly that they were concerned with the injury to amenity that the additional uses as a drinking establishment and as a nightclub had caused. But they also indicate that they were concerned with the effect of those uses on the health and well-being of nearby residents. These are not merely matters of amenity.

Accordingly in my judgment the Inspector was entitled, in the absence of an appeal under ground (a), to decline (in paragraph 5 of his decision letter) to consider any contention on its merits that additional patrons attracted to the premises would not be harmful and that a limit on the numbers who drink but not eat there would be acceptable.

For the reasons given above, an appeal against an enforcement notice made under ground (f), on the basis that any step specified in an enforcement notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control, cannot be entertained when (i) there is no appeal under ground (a) that planning permission should be granted and (ii) the planning objections which the step addresses are not limited to any injury to amenity. An appeal on that basis when there is no appeal under ground (a) may be considered on its merits, however, if the step in issue is one solely to remedy any injury to amenity caused by the breach of planning control. Whether an appeal lies on this basis under ground (f), therefore, is not determined by the particular paragraph in section 173(4) on which the local planning authority may have relied to specify the step in issue. It depends on the nature of the planning objection that the step seeks to remedy.

In this case there was no appeal against the enforcement notice under ground (a). The relevant step, that the use of the premises as a drinking establishment must stop, was not one merely seeking to remedy the injury to amenity such a use had caused. Accordingly the Inspector did not err in law in refusing to consider the merits of the Appellant’s contention that the step exceeded what was necessary to remedy any such injury, and other general planning considerations the Appellant used, in support of its appeal against that step under ground (f)

This appeal must accordingly be dismissed.