Graham Oates v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Kitchin,Lord Justice McCombe,Lord Justice Lindblom |
| Judgment Date | 12 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2229 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C1/2017/3197 and C1/2017/3198 |
| Date | 12 October 2018 |
[2018] EWCA Civ 2229
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
HIS HONOUR JUDGE WAKSMAN Q.C. (sitting as a deputy judge of the High Court)
[2017] EWHC 2716 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Kitchin
Lord Justice McCombe
and
Lord Justice Lindblom
Case Nos: C1/2017/3197 and C1/2017/3198
and
Mr Timothy Straker Q.C. and Mr Jonathan Powell (instructed by Russell-Cooke Solicitors) for the Appellant
Mr Leon Glenister (instructed by the Government Legal Department) for the Respondent
The Interested Party did not appear and was not represented.
Hearing date: 11 July 2018
Introduction
Was it wrong in law for an inspector deciding an appeal under section 174(2) of the Town and Country Planning Act 1990 to uphold an enforcement notice that required the complete demolition of three “new buildings” whose construction had incorporated parts of the buildings previously on the site? That is the basic question in these two appeals. It raises no legal issues that are new.
With permission granted by Lewison L.J. on 8 January 2018, the appellant, Mr Graham Oates, appeals against the order dated 4 November 2017 of H.H.J. Waksman Q.C., sitting as a deputy judge of the High Court, by which he dismissed an application under section 288 of the 1990 Act and an appeal under section 289, challenging the decisions of an inspector appointed by the respondent, the Secretary of State for Communities and Local Government, to dismiss appeals against an enforcement notice issued by the interested party, Canterbury City Council, and the council's refusal of planning permission for development on the same site.
The enforcement notice was issued on 22 August 2016. It alleged a breach of planning control by the erection of three “new buildings”, without planning permission, on the site of three former chicken sheds at Hoath Farm, Bekesbourne Lane, in Canterbury, and required the total demolition of those three “new buildings”. Planning permission for the development of eight residential units had been refused by the council on 22 April 2016. Mr Oates' subsequent appeals, under section 174 and section 78 of the 1990 Act, were heard by the inspector at an inquiry held over four days in April 2017. Her decision letter is dated 2 June 2017.
The challenge to the inspector's decisions was brought on several grounds, all of which the judge rejected.
The issue in these appeals
Although there are five grounds of appeal, it is agreed that they all go to the same principal issue, which is whether the inspector went wrong in her approach to Mr Oates' contention that the surviving parts of the original, lawfully erected buildings on the site could not properly be enforced against, and that the enforcement notice, if upheld, should therefore have been varied.
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 171A(1), “carrying out development without the required planning permission” constitutes a breach of planning control. Section 173(1) requires an enforcement notice to state “(a) the matters which appear to the local planning authority to constitute the breach of planning control …”. Section 173(3) provides that the steps required by the enforcement notice must 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 such development as remains 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., as they then were, 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 grounds (a), (b), (c), (f) and (g). Ground (a) is “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 …”. Ground (b) is “that those matters have not occurred”. Ground (c) is “that those matters (if they occurred) do not constitute a breach of planning control”. Ground (f) is “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”. And ground (g) is “that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed”.
Section 176(1) provides a power for the Secretary of State to vary an enforcement notice “if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority”.
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”.
The enforcement notice
The site has a long planning history, which need not be fully narrated here. The three former chicken sheds had been divided into six units. The council had granted planning permission for the change of use of those six units from agricultural use to use in Class B1 and B8. As the inspector noted (in paragraph 7 of her report), there was “no dispute that this change of use was implemented and also that prior approval was not needed for a change of use from offices to residential”. She reminded herself, however, that “[the] development permitted by Class J [of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, as amended] was for ‘development consisting of a change of use of a building and any land within its curtilage to a use falling [within] Class C3 (dwellinghouses) … from a use falling within Class B1(a) (offices)’, that is, for a change of use only with no permission for any operational development” (paragraph 8).
By May 2015, extensive building work had taken place on the site, without planning permission. On 11 January 2016 Mr Oates made an application for planning permission for “[external] alterations and extensions to 5 existing buildings including retro-fitting insulation and new external cladding/roof materials in connection with the formation of 8 no. residential [dwellings] (comprising 7 x 3 bedroom and 1 x 4 bedroom units) …”. It was the council's refusal of this application that was the subject of the section 78 appeal before the inspector.
The council issued the enforcement notice on 22 August 2016. In paragraph 3 of the notice the alleged breach of planning control was stated to be:
“Without planning permission, the erection of three new buildings in the open countryside for residential use.”
The requirements of the notice, stated in paragraph 5, were these:
“i. Demolish three buildings marked A, B and C on the attached plan.
ii. Remove all resultant material from the land.
iii. Make good the land underneath the three former buildings.”
Mr Oates appealed against the notice on the grounds in section 174(2)(a), (b), (c), (f) and (g).
The inspector's findings and conclusions
In her decision letter (in paragraphs 10 to 13), under the heading “The works (Buildings A, B and C; Units 1–6)”, the inspector set out these findings about the works that had been carried out on the appeal site:
“10. In or around May 2015 the Council was made aware of works taking place to the three buildings. No document or list of the works undertaken has been provided but Mr Harper produced a schedule of works in the ground (f) appeal which he suggested comprised the lesser steps necessary to remedy the breach. From this schedule it is apparent that the works undertaken included the erection of an exo-skeleton shell around each of the three buildings; drystone walling to the corners of each building; blockwork between the steel posts; the installation of 24000 natural roof slates; the installation of Tyvek roofing battens; 200mm Cellotex Insulation between the rafters; the provision of Gluelam rafters; welding to the steel sections; the addition of scarfed sections of the timber rafters; and bolts to the steel posts.
11. Photographs also show that the floors of the buildings were removed and re-laid with concrete. In addition, as I saw on my visit, interior works have included the erection of a block wall to separate the two halves of each building; the creation of rooms by studwork and plasterboards; and plaster boarding around what were the original exterior walls and the remaining parts of the original wooden frame to create walls and ceilings.
12. In order to re-instate the buildings as they were...
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