Mahfooz Ahmed v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Underhill,Lord Justice Floyd |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2014] EWCA Civ 566 |
| Docket Number | Case Nos: C1/2013/2200 and C1/2013/2727 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2014 |
and
[2014] EWCA Civ 566
Lord Justice Richards
Lord Justice Underhill
and
Lord Justice Floyd
Case Nos: C1/2013/2200 and C1/2013/2727
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Ben Emmerson QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Whale (instructed by The Treasury Solicitor) for the Secretary of State
Andrew Fraser-Urquhart (instructed by Wedlake Bell) for Mr Ahmed
The London Borough of Hackney was not represented on the appeal
Hearing date: 5 March 2014
This case concerns a planning enforcement notice issued by the London Borough of Hackney ("the council") in respect of land at 103–105 Stoke Newington High Street, London. Mr Ahmed, the owner of the land, appealed to the Secretary of State under section 174 of the Town and Country Planning Act 1990 ("the 1990 Act") against the notice. By a decision dated 31 March 2011 an inspector appointed by the Secretary of State dismissed the appeal. Mr Ahmed appealed to the High Court under section 289 of the 1990 Act against that decision. By an order dated 16 July 2013 Mr Ben Emmerson QC, sitting as a deputy judge of the High Court, allowed the appeal but made no order as to the costs of the appeal. The Secretary of State now appeals to this court, with permission granted by Sullivan LJ, against the deputy judge's order in so far as it allowed Mr Ahmed's appeal to the High Court. There is a separate application by Mr Ahmed for permission to appeal against the deputy judge's order with regard to costs. Sullivan LJ ordered that application to be listed with the hearing of the main appeal but it has turned out not to be opposed. I deal with it briefly at the end of this judgment.
The question in the main appeal is whether the inspector erred in law on the enforcement notice appeal by failing to consider an "obvious alternative" in accordance with the principles discussed in Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744, [2007] 2 P&CR 7 (" Tapecrown") and Moore v Secretary of State for Communities and Local Government [2013] JPL 192 (" Moore"). The "obvious alternative" relied on is the grant of planning permission for a scheme previously authorised, departure from which had resulted in the breach of planning control that was the subject of the enforcement notice.
The legislative framework
By section 171A(1)(a) of the 1990 Act, carrying out development without the required planning permission constitutes a breach of planning control.
Section 172 empowers the local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control and that it is expedient to issue the notice. Section 173 is concerned with the contents and effect of a notice and provides in particular:
"173 … (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."
Section 174(1) provides that a person having an interest in the land to which the enforcement notice relates may appeal to the Secretary of State. The grounds on which an appeal may be brought are set out in section 174(2) and 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 …;
(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 176 contains general provisions relating to the determination of appeals and includes the following:
"176(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."
Section 177 relates to the grant or modification of planning permission on appeals against enforcement notices. At the material time it read:
"177(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.
…
(5) Where an appeal against an enforcement notice is brought under section 174, 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."
Subsection (5) was subsequently amended to provide that an appellant is deemed to have made an application for planning permission if (a) the land is in Wales or (b) the land is in England and the statement under section 174 specifies ground (a). Since Mr Ahmed's statement did specify ground (a), the amendment would not affect the analysis of this case.
The appeal against the enforcement notice in this case was governed by the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 ("the Enforcement Notices and Appeals Regulations") and the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002 ("the Procedure Regulations"). There are only a few points to be noted about those two sets of regulations.
Regulation 4 of the Enforcement Notices and Appeals Regulations provides that an enforcement notice shall specify "the reasons why the local planning authority consider it expedient to issue the notice". Regulation 6 provides that a person who makes an appeal to the Secretary of State under section 174(3) of the Act shall submit a statement in writing (i) specifying the grounds on which he is appealing against the notice and (ii) setting out briefly the facts on which he proposes to rely in support of each of those grounds.
Regulation 3 of the Procedure Regulations provides that the Procedure Regulations are to apply where an appellant informs the Secretary of State in the notice of appeal that he wishes the appeal to be disposed of on the basis of written representations. Regulation 7 provides that the notice of appeal, the documents accompanying it and any statement submitted under regulation 6 of the Enforcement Notices and Appeals Regulations shall comprise the appellant's representations in relation to the appeal; and it goes on to make provision for the possibility of further representations by the appellant and for written representations by the local planning authority. Regulation 10(1) provides that the Secretary of State may proceed to a decision on an appeal taking into account only such written representations as have been submitted within the relevant time limits.
The factual history
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.
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.
The council issued an enforcement notice dated 3 September 2010. In material part and as subsequently corrected by the inspector, it read:
" 1. This Notice is issued by the Council because it appears to it that there has been a breach of planning control, within paragraph (a) of section 171A(1) of [the 1990 Act], at the land ….
…
3. The matters which appear to constitute the breach of planning...
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