Overriding an enforcement notice

There are two ramifications of the law on enforcement notices which seem to be imperfectly understood by planning officers. The first is the effect of under-enforcement, which is governed by Section 173(11), and on which I have commented on at least two previous occasions in this blog. The second is the operation of Section 180, which provides that where, after the service of an enforcement notice planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as is inconsistent with that permission.

It seems that Wandsworth LBC failed to understand the effect of this provision when they decided to use their powers under Section 178 to take action in default of the owners of a property not complying with an enforcement notice. The resulting dispute came before the High Court in Rapose v. Wandsworth LBC [2010] EWHC 3126 (Admin) in which judgment was given by Lindblom J on 3 December.

The enforcement notice had alleged the erection of a three-storey side extension and required the removal of the extension and all materials from the property and the restoration of the property to its condition before the breach took place. Having lost an appeal against the notice and having also failed to have the appeal decision quashed in High Court proceedings, Mr. Rapose then applied for planning permission for the redevelopment of the site to provide a three-storey building on an enlarged site comprising a restaurant and six residential units.

Planning permission was granted, but it seems that the Council’s decision to permit the unauthorised extension at the rear of the property was made (or intended to be made) on the basis that it was to be incorporated as part of a comprehensive redevelopment of the larger site, so that the reasons for the enforcement action to secure its removal were largely overcome. The enforcement notice was subsequently put on hold because this planning consent (if actioned) would have permitted the extension to remain as part of the comprehensive development of the larger site. However, the Council now claimed that the planning consent could no longer be actioned because of the compulsory acquisition of the other part of the site by the Council and so the extension must now be taken down.

The Council therefore resolved to use its powers under s.178 to secure the removal of the three-storey extension, apparently on the ground that the planning permission had not been implemented and that following the compulsory purchase of the remainder of the property it was no longer capable of being implemented. The Council’s position was that the application made by Mr Rapose, and the permission granted in June 2003, was significantly different from a scheme which might have been submitted to retain the unauthorised extension by itself. The June 2003 Permission only granted permission as an opportunity to regularise the position as part of a single comprehensive development of a larger site. The June 2003 Permission (they claimed) did not permit the freestanding retention or construction of the unauthorised extension at the property but only permitted development as part of a comprehensive scheme across a combination of three sites, which could no longer take place.

Lindblom J considered the case of Havering LBC v. SSE [1983] J.P.L. 240 in which Hodgson J. had held that a planning permission would be effective to override an enforcement notice, even though it did not go precisely to the matters covered by the enforcement notice and even though it contained conditions, as long as it covered the same area of land and the use permitted by the permission embraced the use enforced against. In that case, which concerned enforcement action against a material change of use and a planning permission which had been granted for effectively the same use, it had been submitted that what is now s.180 of the 1990 Act only applied where the planning permission was to do precisely that which was enforced against, and if the permission had conditions attached to it the section did not apply, at least to the extent that the conditions affected the use. Hodgson J. rejected that proposition and also held that the section plainly deals with the "granting", not the so-called "implementation", of planning permission, and so it is not possible to read it as meaning that the enforcement notice shall only cease to have effect when all the conditions in the permission have been complied with. In Cresswell and Cresswell v. Pearson (1998) 75 P. & C.R. the Divisional Court, endorsing the construction adopted by Hodgson J. in the Havering case, rejected the argument that an enforcement notice would merely be put into suspense while a temporary planning permission subsisted.

On the other hand, the effect of section 180 is not that the enforcement notice ceases to have effect altogether, but only that it ceases to have effect to the extent that its requirements are inconsistent with the subsequent grant of planning permission (see R. v. Chichester Justices, ex p. Chichester District Council (1990) 60 P. & C.R. 342).

In Lindblom J’s judgment, the main question to be considered here was not, as the Council appeared originally to contend, whether the 2003 planning permission did or did not permit the unauthorised extension to be retained on its own, but whether there were elements of development common to both the permission and the enforcement notice. As counsel for the developer submitted, if there is fabric which forms part of the development which the planning permission approved, the enforcement notice cannot thereafter be relied upon to attack that much of the development. Conversely, however, the enforcement notice continues to be effective against so much of the fabric as is not approved by the planning permission.

The Council's resolution under challenge in these proceedings authorised direct action against the whole of the extension. It seems that, when it passed that resolution, the committee did not appreciate what the consequences of the operation of section 180 of the 1990 Act would be for its enforcement notice, given the grant of the 2003 permission. It was advised that the development in that permission had not been commenced (which was in fact irrelevant). This may have distracted the committee from examining the extent to which the originally unauthorised extension had been granted planning permission as part of the development approved by the 2003 planning permission. This failure in itself was sufficient to vitiate the Council's decision to proceed with action under sections 178 and 179 of the 1990 Act. The question of whether the enforcement notice was inconsistent with the planning permission, and the precise extent to which it was, were matters of fact and degree for the Council as local planning authority to determine, subject to review by the Court on normal public law principles, but there was enough in the material before the Court to demonstrate that such an exercise was not undertaken in this case. The Council's decision therefore had to be quashed.

© MARTIN H GOODALL