Thursday, 15 May 2014

Enforcement appeals – an important judgment

I remember my colleague Ben Garbett discussing the case of Ahmed v. SSCLG with me when judgment was given in the High Court last July. We agreed that this was an important decision, contrary to the view of one commentator at the time, who lightly dismissed the case as one which raised “a novel (albeit narrow) point of law”, although they did acknowledge that the case made it clear that enforcement action is intended to be remedial rather than punitive, and that obvious alternatives which would overcome planning objections at less cost and disruption to the developer should be considered.

I intended to blog on the case, but pressures on my time prevented this, and the case was in any event destined to go on to the Court of Appeal. The CA has now handed down a judgment - [2014] EWCA Civ 566 - which upholds the first instance decision, and so it really is high time that we looked at this case.

The situation that occurred is one which I have encountered on a number of occasions, and is not uncommon. To put it simply, planning permission is granted for a particular development (or the GPDO permits development within certain limits). The development is then built, but although it is not wholly at variance with the planning permission, it exceeds what was authorised or permitted. It is well-settled law that, if this is a material departure from the consented scheme (or the permitted development under the GPDO) then the entire development is unlawful, and the proper allegation in an enforcement notice is the erection of the development (in its entirety) without planning permission.

What is controversial (and I unsuccessfully took this point in the High Court more than 20 years ago, when we failed to persuade a deputy judge to grant leave under section 289) is the extent of the remedial action which should properly be required by the enforcement notice, which all too often requires the demolition and removal of the entire development. The point will inevitably be raised in an appeal against the enforcement notice under section 174, under either or both of Ground (f) and/or Ground (a). The argument is that the breach of planning control could be adequately remedied by requiring no more than is necessary to bring the development within the scope of the planning permission (or within the scope of the permitted development under the relevant part of the GPDO).

In Mr Ahmed’s case, planning permission had been granted on appeal for the erection of a three-storey building, which would have had a ‘butterfly’ roof, to provide six flats. The building as erected was not, however, in accordance with the approved plans: It had four storeys, providing space for a seventh flat and with a different roof arrangement. In addition, the rear and side elevations of the property as built did not correspond to those shown on the approved plans. 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 planning permission, so that the permission had lapsed five years from the date on which it was issued – although I confess that I have some doubts as to the correctness of this last assertion).

The LPA refused retrospective planning permission for the development as built, and served an enforcement notice 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.

In his appeal against the enforcement notice, Mr Ahmed relied on Ground (f) (namely that the steps required to be taken exceeded what was necessary to remedy any injury to amenity that may have been caused by the breach of planning control). He argued that the scheme that had originally been authorised by the planning permission would still have been acceptable in planning terms at the time the enforcement notice was issued.

He contended that in light of the fact that the approved scheme was achievable by modification of the development, the council’s requirement that the whole of the development be removed was unnecessary and punitive and amounted to over-enforcement, and that all that was required to make the development acceptable in planning terms was for it to be modified to comply with the design of the approved scheme. He asserted in conclusion that the steps required in the enforcement notice clearly exceeded the steps required to remedy any breach of amenity.

Under Ground (a) Mr Ahmed also argued that the development as built was acceptable in planning terms and that planning permission ought to be granted. Starting from the proposition that the scheme that had been authorised by planning permission was still acceptable in planning terms, he focused on the elements of the development that differed from the approved scheme. It is clear, therefore, that under this ground of his appeal Mr Ahmed was seeking approval for the development as built, rather than for the consented scheme, by reference to a comparison exercise between the two schemes.

The inspector dismissed the Ground (a) appeal in respect of the development as built. In relation to the Ground (f) appeal, he acknowledged 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, but he did not believe that the powers available to him under s.176(1) of the Act would allow him to take this step, as it would turn a notice which was intended to rectify a breach of planning control into something else. It would be for the council to consider a fresh application for this, or for an alternative scheme. The inspector seems to have been influenced by the fact that the former planning permission had by now lapsed, and so there was no longer any ‘fall-back’ position that could be implemented.

The inspector agreed with the LPA that the purpose of the notice was to rectify the breach of planning control, rather than to remedy the injury to amenity. In these circumstances, where there was no extant planning permission which could be implemented, the breach of control could only be rectified by the removal of the building as a whole and restoration of the relevant parts of the building to their position before the unauthorised development was carried out. He concluded that there were no lesser steps available to the appellant that would allow this to be achieved.

The question for the court was whether the inspector erred in law by failing to consider an “obvious alternative” in accordance with the principles discussed in Tapecrown Ltd v FSS [2006] EWCA Civ 1744, [2007] 2 P&CR 7 and Moore v SSCLG [2013] JPL 192. The “obvious alternative” relied on would have been the grant of planning permission for the scheme previously authorised, departure from which had resulted in the breach of planning control which was the subject of the enforcement notice.

At first instance, the deputy judge, held that Moore is clear authority for the proposition that where an appellant has advanced a properly articulated fall-back* submission under grounds (a) to (e) in section 174(2), it may also be considered under Ground (f). He could see no reason in logic or principle why the reverse should not also be true. In the present case the Appellant had made his fall-back* position clear under Ground (f). The Inspector concluded that the Appellant’s fall-back* position might have remedied the injury to amenity. The Inspector however concluded that it could not be an obvious alternative for the purpose of the present notice, which had been issued for the sole purpose of remedying the breach of planning control, because the prior consent had already lapsed by the time of his decision. [* The use of the term “fall-back position” here does not seem to have been intended to refer to what planners and planning lawyers usually mean by the term, but rather to an arguably available alternative, which is not quite the same thing.]

In the deputy judge’s view, the Inspector overlooked an obvious alternative that could have remedied the breach of planning control that was the object of the notice – namely the possibility of varying the notice, as requested by the appellant under Ground (f), and at the same time granting retrospective planning consent under section 177, which provides a power to grant consent in respect of part of the matters that were the subject of the enforcement notice (namely that part of the building which could remain standing in accordance with the prior consent, had it not lapsed).

The Appellant was, at the time, deemed also to have made a planning application under Ground (a). For the purposes of that application, and treating the Appellant’s submissions as a whole in accordance with the approach in Moore, it was in his lordship’s judgment incumbent on the Inspector at least to consider whether to exercise his power to vary the notice and grant consent in accordance with the proposal made under Ground (f). Having concluded that he lacked the power to vary the order under section 176 standing alone, recourse to section 177(1) and section 174(2)(a) was the obvious alternative course which could have overcome the planning difficulties, at less cost and disruption than total demolition. In failing to address his mind to this possibility, the Inspector had erred in law.

On appeal to the Court of Appeal, Richards LJ drew attention to the judgment of Carnwath LJ (as he then was) in Tapecrown, when he observed that the inspector has wide powers to decide whether there is any solution, short of a complete remedy of the breach, which is acceptable in planning terms and amenity terms. If there is, he should be prepared to modify the requirements of the notice and grant permission subject to conditions. However, it is not for the inspector to seek out solutions; it is up to the appellant to deal with this in their submissions in support of the appeal. Subject to this point, however, the inspector should bear in mind that the enforcement procedure is intended to be remedial rather than punitive. If on his consideration of the submissions and in the light of the site view, it appears to him that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it. In such circumstances fairness may require him to give notice to the parties to enable them to comment on it.

In giving judgment in Moore Sullivan LJ had said, applying Tapecrown, that the mere fact that in Moore this issue was raised under Ground (b) rather than Ground (f) was not fatal to this ground of appeal. If there was an ‘obvious alternative’ which would overcome the planning difficulties, at less cost and disruption than total cessation, the inspector should have considered it. (The court in Moore held on the particular facts of that case that there was no “obvious alternative” on the material before the inspector.)

On the basis of these authorities and, in particular, Moore, the Court of Appeal upheld the deputy judge’s finding that the inspector erred in law by overlooking an obvious alternative by way of granting planning permission for the previously consented scheme and varying the enforcement notice accordingly. It was clear that the inspector did not consider the possibility of that alternative.

The court did accept, however, that the power under section 177(1) to grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control is linked to an appeal under Ground (a), rather than under Ground (f). But Mr Ahmed’s appeal did include express reliance on Ground (a) and he would have been deemed in any event to have made an application for planning permission by virtue of section 177(5). Although his Ground (a) appeal sought planning permission only in respect of the development as built, which constituted the whole of the matters stated in the notice as constituting a breach of planning control, the power under section 177(1) was to grant planning permission “in relation to the whole or any part of those matters”.

In principle, therefore, planning permission could have been granted for the previously consented scheme if the differences between it and the development as built (i.e. the differences identified in the notice as “unauthorised additions, alterations and variations to the approved scheme”) were such that a development in accordance with the previously consented scheme could be regarded as a “part” of the development as built. This was a matter of planning judgment for the inspector. It was a judgment he did not make because of his failure to give any consideration to the possibility of granting planning permission for the previously consented scheme.

The court was not in a position to decide what conclusion the inspector would have reached if he had considered that possibility. In particular, they could not exclude the possibility that he might reasonably have concluded that the previously consented scheme was to be regarded as “part” of the development as built, on which basis he would have had power under section 177(1) to grant planning permission in relation to it.

The final question to be considered was whether the inspector erred in law in failing to consider the possibility. In the court’s judgment, he did fall into error, in the manner found by the deputy judge. The inspector’s reasoning under Ground (f) was to the effect that he did not have the power to produce a result whereby Mr Ahmed was required to fall back on the previously consented scheme rather than removing the building as a whole. But as explained above, that power potentially existed through the route of granting planning permission for the previously consented scheme under Ground (a). That was a route that the inspector failed to consider. Mr Ahmed had not raised it under Ground (a) but Mr Ahmed’s submissions under Ground (f), albeit put forward in terms of remedying the injury to amenity rather than remedying the breach of planning control, should have alerted the inspector to the possibility as an obvious alternative.

It would have been a matter for the inspector to assess whether the previously consented scheme would overcome the planning difficulties at less cost and disruption than total removal. He made no such assessment because he did not apply his mind to the question. Similarly, it would have been for the inspector to decide whether there had been any material change to the planning considerations that had led to the approval of the previously consented scheme on the conditions then imposed, though the enforcement notice itself did not suggest any such change but relied on the differences between that scheme and the development as built; and it would have been for the inspector to decide whether a variation of the enforcement notice consequent upon the grant of permission for the previously consented scheme would cause any “injustice” to the LPA within section 176(1), though none had been suggested. The fact that there would have been no fresh consultation on the previously consented scheme did not seem to Richards LJ to be a fatal objection in the circumstances.

There are some further points that were discussed in this case that might merit further discussion in the future, and it is clear, both from this judgment and from some of the earlier authorities cited in the course of this case, that there may be circumstances in which it may not be open to an inspector to reduce the requirements of an enforcement notice in the manner sought in this case. However, Ahmed is clear confirmation of the principle that where both Grounds (a) and (f) are relied upon by the appellant, and provided that submissions in support of the case for variation of the requirements of the notice, coupled with a request for appropriate permission under Ground (a) or under section 177, are put forward by the appellant, the inspector must give consideration to this possibility.


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