Mahfooz Ahmed v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Benjamin Emmerson QC |
| Judgment Date | 16 July 2013 |
| Neutral Citation | [2013] EWHC 2084 (Admin) |
| Date | 16 July 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3865/2011 |
[2013] EWHC 2084 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Emmerson QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/3865/2011
Andrew Fraser-Urquhart (instructed by Messrs Cumberland Ellis) for the Appellant
Katrina Yates (instructed by the Treasury Solicitor) for the Respondent
Introduction
This appeal raises a difficult point of construction concerning the inter-relationship between section 174 and section 177 of the Town and Country Planning Act 1990. The point is only likely to arise in a case, such as the present, in which (a) an owner has planning consent to erect a building but has exceeded the consent granted and (b) the original consent has lapsed by the time the enforcement notice is issued and (c) the enforcement notice is issued wholly or partly for the purposes of remedying a breach of planning control. In all other cases the statutory scheme provides a means by which the problem that arose in the present case can be satisfactorily resolved.
The essential question is whether, in the circumstances outlined, an appellant who contends that the enforcement notice imposes requirements that exceed what is necessary to remedy a breach of planning control is required to raise the lesser "fall-back" alternative in the form of an express application for the grant of retrospective planning consent pursuant to section 174(2)(a) or whether it is sufficient if the issue is raised in substance as part of an appeal against excessive enforcement under section 174(2)(f).
The planning history
The facts can be shortly stated. On 7 June 2005 planning permission was granted on appeal for the demolition of an existing property at 103 to 105 Stoke Newington High Street, London N16, 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 floors. The terms of the consent required the development to begin within five years of the date of the decision. The consent therefore expired on 7 June 2010.
Construction began in 2007 and was completed during 2009. However, the building that was erected differed in material respects from the approved plans. It was constructed with four storeys and a flat roof to provide three levels of accommodation above the ground floor retail unit, thereby affording space for the construction of an additional flat.
An application for retrospective permission to regularise the development was refused by the local planning authority, the London Borough of Hackney, on 20 January 2010. On 3 September 2010 Hackney issued an enforcement notice under sections 171A(1)(a) and 172(1) of the 1990 Act requiring the permanent and complete removal of the whole of the unauthorised building, the restoration of the relevant parts of the previous building to their position before the unauthorised development was carried out, and the removal of all waste, materials, equipment and debris. The notice was to take effect on 3 November 2010 and provided three months for compliance.
The Appellant did not dispute the unauthorised development. However he appealed against the enforcement notice under section 174 of the 1990 Act on a number of grounds, only two of which are material to the present appeal. First, he appealed under section 174(2)(f) on the ground that the steps that were required to be taken by the notice (namely the demolition of the entire building) exceeded that which was required to "remedy the breach of planning control". The terms in which he framed his appeal are of some importance for reasons that will become apparent. In his statement of case under section 174(2)(f) the appellant submitted that the principal considerations which underlay the Secretary of State's decision to grant planning consent in 2005 remained valid since there had been no material changes in the local development plan which would give grounds to reconsider the merits of the Inspector's decision. He therefore submitted that "the scheme that was approved in 2005 would still have been acceptable in planning terms at the time the enforcement notice was issued". The Inspector's attention was drawn to the guidance in PPG18 to the effect that "Enforcement action should always be commensurate with the breach of planning control to which it relates". The appellant submitted that "in light of the fact that the approved scheme was achievable by modification of the development, the LPA's requirement that the whole of the three storey development be removed was unnecessary and punitive and amounts to over-enforcement". The submission concluded:
"The appellant would contend that clearly all that was required to make the development 'acceptable on planning grounds' was for it to be modified to comply with the design of the approved scheme; not, as stated in the notice, the removal of the whole of the three storey building."
He also appealed under section 174(2)(a). This provides, so far as material, that an appeal may be brought on the ground "that, in respect of any breach of planning control that may be constituted by the matters stated in the notice, planning permission ought to be granted". His statement of case on this ground related the history, and referred to the conclusions of the Inspector in 2005 when granting consent on appeal. It then continued:
"Based on the inspector's comments, the scheme that was approved on appeal in 2005 was clearly acceptable in planning terms. As the local plan has not been amended since 2005 in any manner that would now undermine the decision of the inspector in 2005, it is deemed that the approved development would therefore still be acceptable in planning terms."
Taking the 2005 consent as his starting point, the remainder of the appellant's submissions on this ground then focussed upon the elements of the development (as built) that differed from the scheme (as approved in 2005) and set out arguments in support of the appellant's contention that the Secretary of State should give consent under section 177(1)(a) for the building as it had in fact been erected. The appellant's submissions under section 174(2)(a) were construed by Hackney and by the Inspector as a submission that retrospective consent should be granted for the building as constructed. Neither addressed the alternative possibility that retrospective consent could or should be granted so as to authorise the development plan that had received consent in 2005, and to amend the notice so as to require the appellant to effect changes to the building in order to conform to the plans that were the subject of the 2005 consent. The relevant part of the appellant's statement of case did not in terms ask for limited retrospective consent for the construction of a building in accordance with the terms of the 2005 permission. As I have already pointed out, however, the appellant did clearly and expressly advance the submission under the section 174(2)(f) ground that restoration of the building to conform to the 2005 consent was all that was required to remedy the breach of planning control, and the point was at least adverted to in connection with the submissions made under section 174(2)(a) (see paragraph 7 above).
The Inspector's decision
In a decision letter dated 31 March 2011 the Inspector appointed by the Secretary of State dismissed the appeal. As regards the submission made under section 174(2)(f) he found that since the enforcement notice was directed to remedying the breach of planning control, and not solely to remedying the injury to amenity caused by the breach, and since the 2005 consent had lapsed on 7 June 2010, it followed that he had no power to allow an appeal on the grounds of over-enforcement by varying the notice so as to require the partial demolition of the building and its re-modelling to conform to the terms of the 2005 consent. His reasoning (at paragraphs 28 to 30 of the decision letter) was in these terms:
"28. The notice requires removal of the building in its entirety and the restoration of the relevant parts of the building to their position before the unauthorised development was carried out. I acknowledge that an alteration to the building which resulted in it complying with the application that was previously granted might be sufficient to remedy the injury to amenity. It would be for the Council to consider a fresh application for this, or for an alternative scheme, in the first instance. However the powers available to me under section 176(1) of the Act as amended do not allow me to turn a notice which is intended to rectify a breach of planning control into something less.
29. As matters stand there is no extant planning permission, the previous permission having expired, and no alternative permission having been granted. There is no planning permission for the building which now stands on the site, or any fallback position which can be implemented.
30. The Council has made it clear that the purpose of the notice is to rectify the breach of planning control rather than to remedy the injury to amenity. In the circumstances, where there is no extant planning permission which can be implemented, the breach of control can only be rectified by the removal of the building as a whole and the restoration of the relevant parts of the building to their position before the unauthorised development was carried out. There are no...
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