Baljit Singh Bhandal v Secretary of State for Housing, Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 15 October 2020 |
| Neutral Citation | [2020] EWHC 2724 (Admin) |
| Docket Number | Case No: CO/4504/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 October 2020 |
[2020] EWHC 2724 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
IN THE MATTER OF AN APPLICATION UNDER SECTION 289 OF THE TOWN & COUNTRY PLANNING ACT 1990
Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS
THE HONOURABLE Mr Justice Pepperall
Case No: CO/4504/2019
Thea Osmund-Smith (instructed by FBC Manby Bowdler LLP) for the Appellants
Killian Garvey (instructed by the Government Legal Department) for the First Respondent
There being no appearance for the Second Respondent
Hearing date: 5 May 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
By a written decision dated 17 October 2019, Mr J Whitfield, an inspector appointed by the Secretary of State for Housing, Communities & Local Government, dismissed the majority of the Bhandals' appeal against an enforcement notice issued by Bromsgrove District Council. Baljit Singh Bhandal, Balbir Singh Bhandal and Amrik Singh Bhandal now further appeal against such decision with the permission of His Honour Judge David Cooke.
BACKGROUND
The Bhandals own and operate the Four Stones Restaurant in Clent, Worcestershire. In July 2016, Bromsgrove District Council granted planning permission to demolish an existing sunroom at the front of the restaurant and build a replacement sunroom with a flat roof. The replacement building was not, however, built in compliance with the planning permission. Specifically:
2.1 It has a different number of glazed panels on the front elevation.
2.2 The upper section of the front elevation is glazed whereas on the approved plans it was not.
2.3 The roof is sloping rather than flat. Further, it is higher and includes a projecting canopy with support columns.
The Bhandals sought planning permission for the sunroom as built. Such application was refused by Bromsgrove in July 2017 and by the Secretary of State on an earlier appeal in April 2018. Subsequently, the council issued an enforcement notice on 27 November 2018 requiring the removal of the unauthorised development and all building materials and rubble within three months of 3 January 2019, being the date when the notice took effect.
By an appeal dated 2 January 2019, the Bhandals appealed to the Secretary of State arguing the grounds at ss.174(2)(a), (f) and (g) of the Town & Country Planning Act 1990. In support of their appeal upon grounds (a) and (f), the Bhandals proposed four alternative developments:
4.1 Option A: The removal of the overhanging canopy.
4.2 Option B: The removal of the unauthorised roof and its replacement with a flat glazed roof.
4.3 Option C: As option B, but with the addition that the upper section of the elevations would comply with the 2016 planning permission.
4.4 Option D: That provision should be made to enable the closure of the opening that would result from the removal of the sunroom.
The inspector rejected the appeal upon ground (a). His rejection of option A is not challenged in this further appeal. He concluded that options B-D were outwith his powers to grant planning permission. Further, he rejected the appeal upon ground (f) that the requirements of the enforcement notice exceeded what was necessary. The inspector, however, partially allowed the appeal upon ground (g) and extended time for compliance to nine months to allow the parties time to explore alternative schemes.
By this further appeal, the Bhandals argue three grounds:
6.1 Ground 1: First, they argue that the inspector was wrong to conclude that alternative developments B and C would not form part of the matters constituting the breach of planning control because works would be required to build a new roof. Accordingly, they argue that the inspector was wrong to conclude that he had no power to grant planning permission for such alternative development.
6.2 Ground 2: Secondly, they argue that the alternative developments B and C proposed solutions that were short of complete demolition and that the inspector was therefore wrong to reject the appeal upon ground (f).
6.3 Ground 3: If all else fails, they argue that it was irrational to fail at least to grant permission for alternative development D.
THE STATUTORY FRAMEWORK
Section 172(1) of the Town & Country Planning Act 1990 provides that a local planning authority may issue an enforcement notice where it considers that there has been a breach of planning control and it is expedient to issue the notice. The statutory purposes for an enforcement notice are set out at s.173(4) of the Act:
“(a) remedying the breach by making any development comply with the terms … of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring it to its condition before the breach took place; or
(b) remedying any injury to amenity which has been caused by the breach.”
An appeal may be brought on any of seven grounds set out at s.174(2). The relevant grounds in this case are:
“(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 …
(f) that the steps required by the notice to be taken … exceed what is necessary to remedy any breach of planning control which may be constituted by those matters …
(g) that any period specified in the notice in accordance with s.173(9) falls short of what should reasonably be allowed.”
By s.177(1)(a), the Secretary of State may “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.” By s.177(3), the permission that may be granted under s.177(1) is any permission that might be granted on an application under Part III of the Act.
GROUND 1: NEW WORKS
As explained above, by ss.174(2)(a) and 177 planning permission can be granted on an appeal upon ground (a) in relation to the whole or part of the matters stated in an enforcement notice. Here, the inspector reminded himself, at paragraph 3 of his decision letter, that his power to grant planning permission was limited to permission for the whole or part of the development now enforced against. He concluded, at paragraph 19, that option A would form part of the development enforced against. He nevertheless rejected the appeal on the basis of such alternative development since it would not overcome the harm caused by the unauthorised development.
The inspector then concluded that it was not open to him to grant planning permission in respect of options B and C because such options involved new works:
11.1 As to B, he said, at paragraphs 24–25:
“24. However, to carry out such an alteration, the canopy would be removed as well as the sloping roof, together with the upper glazed panels on the front and side elevation. The roof would be replaced with a new flat, glazed roof. Given that, as the appellant accepts, the alternative would require the addition of a flat roof, it seems to me that it cannot, by definition of the fact they are new works, form part of the sunroom as enforced against. Consequently, I find that the alternative development would not form part of the matters as enforced against in the notice.
25. Regardless of the merits of the alternative, it is not, therefore, open to me to grant planning permission for it under the appeal on ground (a).”
11.2 As to C, he added, at paragraphs 26–27:
“26. … This would involve the addition of an upper section which is flat-roofed in line with the approved drawings. The proposal is for this to be aluminium framed and glazed to match the rest of the sunroom.
27. This too would require the removal of the sloping roof and its replacement with a flat roof in line with the approved plans of the 2016 permission. Again, as this would involve new works in the formation of a roof, it seems to me that work would be required that do not form part of the sunroom as enforced against. Consequently, I find that the alternative development would not form part of the matters of the notice and it is not, therefore, open to me to grant planning permission for it under the appeal on ground (a).”
Thea Osmund-Smith, who appears for the Bhandals, argues that the inspector was wrong to take such a narrow view of his power to grant planning permission and that he failed therefore to exercise his judgment as to the planning merits of the alternative options proposed by the appellants. Killian Garvey, who appears for the Secretary of State, argues that the inspector properly exercised his planning judgment to conclude that the proposed alternative developments were not part of the development now enforced against. He contended that he was right in his approach to the statutory power but that in any event there were no proper grounds upon which the court could interfere with his exercise of planning judgment.
The proper approach to alternative schemes was considered by the Court of Appeal in Tapecrown Ltd v. First Secretary of State [2006] EWCA Civ 1744, [2007] P. & C.R. 7. Carnwath LJ, as he then was, first considered the planning authority's discretion pursuant to s.173(3) to seek to enforce the breach of planning control either “wholly or partly.” He noted that the recommendation in his landmark 1989 report, Enforcing Planning Control, that there should be a “broad discretionary power to deal with the...
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