Secretary of State for Communities and Local Government v Ioannou
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lady Justice Rafferty,Lord Justice Lloyd Jones |
| Judgment Date | 31 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1432 |
| Docket Number | Case No: C1/2014/0049 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 2014 |
[2014] EWCA Civ 1432
Lord Justice Sullivan
Lady Justice Rafferty
and
Lord Justice Lloyd Jones
Case No: C1/2014/0049
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE OUSELEY
CO/3604/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Banner (instructed by Treasury Solicitors) for the Appellant
Jonathan Wills (instructed by Kingsley Smith Solicitors) for the Respondent
Hearing date: 16 TH October 2014
Introduction
This is the Secretary of State's appeal against the order dated 16 th December 2013 of Ouseley J allowing Mr. Ioannou's appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against the decision of an Inspector dated 12 th March 2012 dismissing Mr. Ioannou's appeal under section 174 of the Act against an enforcement notice issued by the London Borough of Enfield on 17 th November 2010 in respect of the unauthorised conversion of a single family dwelling house, 15 Hamilton Avenue, London N9 7PP, into five self-contained flats.
Factual background
The factual background is described in some detail in the judgment of Ouseley J [2013] EWHC 3945 (Admin). In summary, Mr. Ioannou appealed against the enforcement notice on four of the grounds in subsection 174(2): grounds (a), (d), (f) and (g). The Inspector dismissed the appeal on the grounds (a), (d) and (f), but allowed the appeal on ground (g), and extended the time for compliance with the notice from two to six months. Much of the Inspector's decision is concerned with the ground (d) appeal. Permission to appeal against the Inspector's decision to dismiss the ground (d) appeal was refused by the High Court.
At the enquiry before the Inspector it was submitted on behalf of Mr. Ioannou that the ground (a) appeal should be allowed, and planning permission should be granted for either (i) the five self-contained flats; or (ii) an alternative, three flats scheme, which the Council's witness agreed under cross examination would be preferable to Mr. Ioannou's fall-back position – that if he was required to reinstate No. 15 as a single dwelling house he would change its use into a house in multiple occupation (HMO), which he would be entitled to do as permitted development.
The Inspector rejected both of those arguments. In respect of submission (i) he concluded:
"that the notice works have had a most damaging impact on the living conditions of the occupants of the residential units. Planning permission should be withheld." (paragraph 49 of the decision)
There has been no challenge to that conclusion.
In respect of submission (ii) the Inspector said:
"A number of plans were tabled at the Inquiry showing alternative layouts and different numbers of flats for the appeal property. But it is the notice works, rather than these other schemes, which I must consider under this ground." (paragraph 43 of the decision).
The Inspector also rejected a submission that he could have varied the steps required to be taken by the notice under ground (f), so as to enable the three flats scheme to be implemented. The Inspector dealt with this submission in paragraph 56 of his decision, as follows:
"In reaching this conclusion I have considered the relevance of the alternative plans already referred to in ground (a) above. The changes suggested by these schemes are not lesser requirements as such and do not directly relate to the allegations the subject of this appeal."
When dealing with the ground (g) appeal the Inspector, having noted the parties' agreement that six months would be a reasonable time for compliance, said in paragraph 59 of his decision:
"Although I was not able to grant planning permission for the 3 flats scheme, described in my paragraph 52 above, it is clear that this is the Council's and my preferred option. The extended period for compliance will give time for the Appellant to explore this alternative with the Council and make any appropriate planning application. Bearing in mind the discretion given to the Local Planning Authority to extend any period for compliance, by section 173A of the Act, 6 months should be sufficient to gauge whether agreement on such an alternative scheme is likely."
Before Ouseley J, Mr. Wills submitted that the Inspector had erred in concluding that he did not have power to allow the ground (a) appeal and grant permission for the three flats scheme. In the alternative, he submitted that the Inspector had erred in concluding that he did not have power to vary the steps required for compliance with the notice under ground (f), so as to enable the three flats scheme to be effected by virtue of the combined effect of taking those steps (as varied) and section 173(11) which would treat that which remained as having been granted planning permission by virtue of section 73A of the 1990 Act.
Ouseley J set out the relevant statutory provisions in paragraphs 17–22 of the judgment. The critical provisions in respect of the ground (a) appeal are as follows:
(i) the requirement in subsection 173(1) that an enforcement notice shall state
"(a) the matters which appear to the local planning authority to constitute the breach of planning control…..";
(ii) subsection 174(2) which provides that an appeal against an enforcement notice may be brought on the ground
"(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….";
(iii) subsection 177(5) which provides that where an appeal has been made under ground (a) (above), 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";
(iv) subsection 177 (1) which 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"; and
(v) subsection 177(2) which provides that
"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."
The critical provisions in respect of the ground (f) appeal are:
(i) subsection 173(3) which provides that 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";
(ii) subsection 173(4) which states that those purposes are either remedying the breach or
"(b) remedying any injury to amenity which has been caused by the breach";
(iii) ground (f) in subsection 174(2) which enables an appellant to appeal against an enforcement notice on the ground
"(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";
(iv) subsection 176(1)(b) which enables the Secretary of State to vary the terms of an enforcement notice;
(v) subsection 176(2A) which requires the Secretary of State to give any directions necessary to give effect to his determination on the appeal;
(vi) subsection 173(11) which provides that
"(11) Where –
(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and
(b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities."; and
(vii) subsection 73A(1) which provides that
"(1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application."
The judgment
Ouseley J rejected Mr. Wills' submission that the Inspector had power to allow the appeal on ground (a) and grant planning permission for the three unit scheme. Mr. Wills did not challenge that conclusion by way of a Respondent's Notice. He was right not to do so. Both the ground (a) appeal and the deemed application for planning permission under subsection 177(5) are tied to the breach of planning control alleged in the enforcement notice. This is mirrored by the power to grant planning permission under subsection 177(1) which is limited to a power to grant permission in relation to the whole or any part of those matters. There is no challenge to Ouseley J's conclusion in paragraph 37 of his judgment that:
"Taking the ground (a) appeal and the deemed planning application by themselves, the Inspector was bound to dismiss the appeal as a matter of his statutory powers. It is clear that something other than the grant of permission...
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