Craig Arnold and Another v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Davis |
| Judgment Date | 31 March 2017 |
| Neutral Citation | [2017] EWCA Civ 231 |
| Date | 31 March 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2015/1647 |
[2017] EWCA Civ 231
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE DOVE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
and
Lord Justice Lindblom
Case No: C1/2015/1647
Mr Richard Turney (instructed by Mishcon De Reya LLP) for the Appellants
Mr Ryan Kohli (instructed by the Government Legal Department) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 22 February 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
Did an inspector determining appeals against an enforcement notice under section 174(2) of the Town and Country Planning Act 1990 fail lawfully to consider "alternatives" to the development against which the enforcement action had been taken? That is the central question in this appeal. The principles of law relevant to it are all well established and familiar.
With permission granted by Lewison L.J. on 18 November 2015, the appellants, Mr and Mrs Arnold, appeal against the order of Dove J., dated 10 April 2015, dismissing their appeal under section 289 of the 1990 Act against the decision of an inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, in a decision letter dated 6 September 2013, to dismiss their appeals under section 174(2) against an enforcement notice issued by the second respondent, Guildford Borough Council, on 2 November 2012.
The enforcement notice alleged a breach of planning control at Blackheath Cottage in the village of Blackheath, near Guildford. Blackheath Cottage has been Mr and Mrs Arnold's home since 2006. Blackheath is in the Green Belt, and in the Surrey Hills Area of Outstanding Natural Beauty. The development enforced against was the erection of a dwelling-house without planning permission. The enforcement notice required that the building be demolished, and the land reinstated to specified levels. Mr and Mrs Arnold appealed against the notice on the grounds in section 174(2)(a), (b), (c), (f) and (g). The inspector held an inquiry into the appeals over four days in July and August 2013. The appeals succeeded only on ground (g). In his decision letter the inspector upheld the enforcement notice, which he varied to allow a longer period – nine months instead of six – for compliance with its requirements. The appeal against his decision was pursued on four grounds, all of which Dove J. found unmeritorious.
The issues in this appeal
In the appeal to this court there were originally four grounds. Lewison L.J. granted permission only on one, which raises two issues for us to decide. First, did the inspector misdirect himself as to his power to grant planning permission for an "alternative" scheme? And secondly, did he lawfully consider the relevant "alternatives"?
The statutory provisions
Section 172(1) of the 1990 Act gives a local planning authority the power to issue an enforcement notice where it appears to it that there has been a breach of planning control and that it is expedient to issue the notice. Under section 173(3) the steps required by the enforcement notice are to be directed to achieving "wholly or partly" any of the purposes referred to in subsection (4), which are "(a) remedying the breach" of planning control and "(b) remedying any injury to amenity which has been caused by the breach". Where the enforcement notice requires less than a full remedy of the alleged breach of planning control, section 173(11) provides for deemed planning permission for what is left after the notice has been complied with (see paragraph 31 of the judgment of Carnwath L.J., as he then was, in Tapecrown Ltd. v First Secretary of State [2006] EWCA Civ 1744, with which Wilson and Hughes L.JJ. agreed). Section 174(2) provides that an appeal may be brought against an enforcement notice on any of eight specified grounds. The relevant grounds here are these:
"(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 …;
(b) that those matters have not occurred;
(c) that those matters (if they occurred) do not constitute a breach of planning control;
…
(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 or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."
Section 177(1) provides that 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;
…."
Section 177(5) provides that, where an appeal is brought under 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".
Mr and Mrs Arnold's development
Blackheath Cottage was an Arts and Crafts building. It was not a listed building, but was described in representations submitted to the inquiry by the Arts and Crafts Movement in Surrey as an example of "Surrey vernacular design in keeping with the Townsend design heritage in the village and the materials used" (paragraph 65 of the inspector's decision letter). On 24 February 2011 and 6 June 2011 the council issued certificates of lawful development – the first for single-storey rear extension to the building, the second for a two-storey front extension. Mr and Mrs Arnold began extensive works to the building – believing, it seems, that those works had the benefit of planning permission granted by the Town and Country Planning (General Permitted Development) Order 1995. They now accept, as I understand it, that the works did not correspond to the development for which the certificates had been issued.
The enforcement notice
As corrected by the inspector, the enforcement notice alleged the breach of planning control in these terms:
"Without planning permission operational development comprising of the erection of a building to be used as a dwelling … as shown hatched in black on the attached plan."
The reasons given for issuing the notice stated that the development was "inappropriate development within the Green Belt" and "therefore harmful, by definition"; that there were "no very special circumstances to justify" it; that, "by virtue of the scale and bulk of the replacement dwelling", it had an "adverse impact on the openness of the Green Belt"; that "[given] the inappropriate nature of the development, this impact would be harmful to the most important characteristic of the Green Belt"; that, "by virtue of its scale, bulk and design", it "introduces a form of development out of keeping with the rural character of the surrounding area"; and that "the introduction of large areas of flat roof, incorporated within the building, represent poor design forms which jar with the surrounding context". These contentions of planning harm were supported by reference to relevant local and national policy, respectively in the Guildford Borough Local Plan and the National Planning Policy Framework ("NPPF"). The requirements of the notice included these steps:
"1. Demolish the building in the position shown hatched in black on the attached plan.
2. Reinstate the levels of the land in accordance with the drawing titled existing block plan, submitted with the application for a Certificate of Lawful Development, reference 11/P/00633 and numbered 1007-P011 Scheme A."
The inspector's decision letter
In the course of his discussion of the ground (b) appeals the inspector said this (in paragraph 16 of his decision letter):
"16. Stepping back from the finer detail the question to ask as a matter of fact and degree is what took place from December 2011 onwards. Was it simply some staged extensions to an existing dwelling that were arguably not development or permitted development or alternatively in essence the construction of a new dwelling with the integration of a few remaining walls? I consider that the only logical conclusion to draw given the scale and amount of demolition that took place is that what has been built is a new dwelling and not one that has been repaired and extended by alteration and enlargement. Reaching any other conclusion based on the facts would be contrary and send out a message that it is possible to build a new dwelling of a fundamentally different design by employing an argument of staged removal and replacement under [permitted development] rights."
The inspector dealt with the appeal on ground (a) in paragraphs 44 to 88. In paragraphs 44 and 45 he said:
"44. Before considering the main issues it is worth focusing on what the proposal is that flows from the deemed planning application and ground (a). [Section] 174(a) concerns breaches of planning control which may be constituted by the matters stated in the notice for which planning permission ought to be granted. So essentially, unless the breach of planning control is wrong (which I do not consider it is), the deemed application in this case is for the dwelling as built on the date the notice was issued. I accept that by virtue of...
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