Stamatios Miaris v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lindblom,Lord Justice Tomlinson,Lord Justice Longmore
Judgment Date05 February 2016
Neutral Citation[2016] EWCA Civ 75
Date05 February 2016
Docket NumberCase No: C1/2015/1971

[2016] EWCA Civ 75

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JOHN HOWELL Q.C.

[2015] EWHC 1564 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Longmore

Lord Justice Tomlinson

and

Lord Justice Lindblom

Case No: C1/2015/1971

Between:
Stamatios Miaris
Appellant
and
(1) Secretary of State for Communities and Local Government
(2) Bath and North East Somerset Council
Respondents

Mr Jonathan Wills (instructed by Horsey Lightly Flynn) for the Claimant

Ms Estelle Dehon (instructed by the Government Legal Department) for the First Respondent

Hearing date: 9 December 2015

Lord Justice Lindblom

Introduction

1

What is the scope of an appeal against an enforcement notice on ground (f) in section 174(2) of the Town and Country Planning Act 1990 when the appellant complains that the steps required by the notice exceed what is necessary to remedy any "injury to amenity" caused by the alleged breach of planning control but has not brought an appeal on ground (a) contending that planning permission ought to be granted? That is the question at the heart of this appeal.

2

The appellant, Mr Stamatios Miaris, appeals against the order of Mr John Howell Q.C., sitting as a deputy judge of the High Court, dismissing his 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, who dismissed his appeal under section 174 against an enforcement notice issued by the second respondent, Bath and North East Somerset Council. The enforcement notice was issued on 10 July 2013. It alleged a breach of planning control by the making of a material change of use, without planning permission, of Mr Miaris' premises known as " Opa", at 14 North Parade, Bath, from use as a restaurant to use as a restaurant, drinking establishment and nightclub. It required the use of the premises as a drinking establishment and as a nightclub to cease, and that disc jockeys no longer be allowed to perform there. Mr Miaris appealed against the notice on 5 August 2013, relying only on ground (f). The appeal was determined on the parties' written representations. The inspector's decision letter is dated 7 March 2014. He found that the "general planning considerations" Mr Miaris had raised were not appropriate in a ground (f) appeal where there was no appeal under ground (a) and no deemed application for planning permission. He therefore declined to consider the parties' representations on the planning merits. The section 174 appeal therefore failed.

The issues in the appeal

3

The thrust of Mr Miaris' appeal under section 289, and now the thrust of the appeal before us, was that the inspector misdirected himself as to the scope of ground (f), and should not have excluded the parties' representations on the planning merits. The deputy judge rejected that argument. He held that an appeal against an enforcement notice under ground (f), on the basis that a requirement in the notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control, cannot be entertained when there is no appeal under ground (a) contending that planning permission should be granted, and the planning objections addressed by the requirement are not limited to any "injury to amenity". However, he granted permission to appeal to the Court of Appeal because in his view this was a question "that ought … to be resolved authoritatively in view of its general application". There are seven grounds of appeal. They raise two main issues: first, whether the deputy judge was wrong to conclude that the inspector properly understood the extent of his power to deal with the planning merits under ground (f); and second, whether the deputy judge was wrong to conclude that the requirements in the council's enforcement notice, in particular the requirement that the use of the premises as a drinking establishment must cease, were not merely seeking to remedy the "injury to amenity" allegedly caused by the breach.

The statutory provisions

4

The statutory scheme for the enforcement of planning control, now contained in Part VII of the 1990 Act, is a self-contained code. First put in place in section 23 of the Town and Country Planning Act 1947, it has developed through successive reforms, including its amendment by the Planning and Compensation Act 1991 following the report of Robert Carnwath Q.C., as he then was, presented to the Secretary of State for the Environment in February 1989 under the title "Enforcing Planning Control". Amendments to provisions relevant in this case were made by the Localism Act 2011, and came into force on 6 April 2012.

5

Section 171A(1) of the 1990 Act provides that either "(a) carrying out development without the required planning permission" or "(b) failing to comply with any condition or limitation subject to which planning permission has been granted" will be "a breach of planning control". Section 172(1) provides that a local planning authority "may issue" an enforcement notice where it appears to them "(a) that there has been a breach of planning control" and "(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations".

6

Section 173 provides for the contents and effect of enforcement notices. An enforcement notice must state "the matters which appear to the local planning authority to constitute the breach of planning control" (subsection (1)(a)). Subsections (3) and (4) provide:

"(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 173(5) states that an enforcement notice may, for example, require "(c) any activity on the land not to be carried on except to the extent specified in the notice". Section 173(11) provides for deemed planning permission in the circumstances it specifies:

"Where –

(a) an enforcement notice in respect of any breach of planning control could have required … 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 carrying out of the activities.

…".

7

Section 174(4) requires a person who gives notice of an appeal against an enforcement notice to submit to the Secretary of State, a statement in writing specifying the grounds on which he is appealing against the notice. Section 174(2) provides the grounds on which an appeal against an enforcement notice may be brought. 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 or, as the case may be, the condition or limitation concerned ought to be discharged".

Ground (b) is that the matters allegedly constituting a breach of planning control have not occurred, ground (c) that those matters, if they occurred, do not constitute a breach of planning control, and ground (d) that at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control constituted by those matters. Ground (f) is:

"… 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 …

…".

The effect of subsections (2A) and (2B) of section 174, introduced by the Localism Act 2011, is that, in England, an appeal on ground (a) cannot be brought if a retrospective application for planning permission has been made but an enforcement notice has been issued before the time for making a decision on the retrospective application has expired. Section 70C, also introduced by the Localism Act 2011, provides that a local planning authority in England may decline to determine a retrospective planning application if an enforcement notice has previously been issued for any part of the development.

8

Section 176 provides:

"(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.

… ".

9

Section 177 provides for the "[grant] or modification of planning permission on appeals against enforcement notices". Subsection (1) states that on the determination of an appeal under section 174, the Secretary of State may "(a) grant planning permission in respect of the matters...

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3 cases
  • Kestrel Hydro v Secretary of State for Communities and Local Government and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 July 2016
    ...remedying the breach or any injury to amenity arising from that breach (see the recent decision of this court in Miaris v Secretary of State for Communities and Local Government [2016] EWCA Civ 75). They cannot act against works pre-dating the breach, which are therefore no part of it. This......
  • Craig Arnold and Another v Secretary of State for Communities and Local Government and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 31 March 2017
    ...does not depart from the principles in the relevant authorities, including now the decision of this court in Miaris v Secretary of State for Communities and Local Government [2016] EWCA Civ 75. 40 The inspector's conclusions in paragraphs 94 and 95 – assuming now that "lesser steps&quo......
  • Patrick Keenan v Woking Borough Council and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 8 March 2016
    ...to amenity, regardless of the purpose identified in the enforcement notice, citing the High Court judgment in Miaris v Secretary of State for Communities and Local Government [2015] EWHC 1564 (Admin), upheld in the Court of Appeal [2016] EWCA Civ 75. 33 Furthermore, the Appellant contended......

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