More pain for struggling planning authorities

It has no doubt been a considerable disappointment to De-CLoG ministers that, despite all the huffing and puffing on the part of Yorkshire’s Biggest Export, only one local planning authority has ended up being put in special measures on the grounds of alleged poor performance (Blaby – a Tory-controlled council in Leicestershire), and it looks as though only one county planning authority (actually a unitary – Trafford) will join them on the naughty step, on account of their performance in dealing with minerals and waste applications.

It was with this in mind that ministers have tried to dream up other ways in which they could sweep local planning authorities into the net, although (when you think about it) the whole idea seems pretty daft, as most developers probably won’t want to apply for planning permission direct to the Planning Inspectorate. What vast number of such direct applications have there been in Blaby so far, I wonder?

Anyway, undeterred by the sheer pointlessness of the exercise, De-CLoG has now announced the outcome of the consultation it launched in March. Among the ideas that had been canvassed was a rise in the percentage threshold to 40% or even 50% for determining major applications within the target period (13 weeks, or 16 weeks where EIA is involved). Instead of abandoning the daft idea of judging LPA performance by the speed of decision-making, it seems the government has settled on a 40% threshold (which actually represents an increase of one-third in the number of major applications that LPAs will now have to process on time).

There will be an exemption for LPAs receiving no more than two major applications over the two-year assessment period, but this means that an authority that receives only three such applications will have to determined two out of the three on time in order to meet the 40% threshold, because meeting the target time for only one out of the three would be belowe the 40% benchmark! Such an authority would in practice be facing a 66% threshold. (Which just goes to show how daft this game really is.). Not content with this, ministers have thrown in a veiled threat that the threshold could still be upped to 50% at some time in the future, although this may be an empty threat if the current motley crew get thrown overboard by the electorate at the General Election in 11 months’ time.

The other whizzo wheeze that ministers have dreamed up is the proportion of decisions on major applications that are overturned at appeal. The threshold here is losing 20% of such appeals over a two-year period. LPAs will be assessed against each of these two criteria independently, and so could be put in the sin bin on the basis of either or both of these. On the lost appeals criterion, there will be an exemption for those authorities receiving 10 or fewer major applications in the two-year period.

One point which is not spelt out, but which may lie behind ministerial thinking, is that LPAs who turn down major housing applications on un-allocated green field sites, but then lose subsequent appeals because they can’t demonstrate a 5-year housing supply, could be at some risk of being ‘designated’ under the appeals criterion if they lose, say, three out of 11 to 15 major appeals in their area. This could act as a further strong incentive to councils to ensure that their local plans are updated as soon as possible, so as to allocate enough housing sites to meet the 5-year housing land supply requirement in the NPPF and, in the meantime, to let these applications through, rather than risk losing appeals and getting sat upon by the Secretary of State (a painful experience, as the Leader of Blaby Council has discovered).

I wonder whether the government is going to keep up this performance all the way to the General Election? With UKIP snapping at their heels (having jumped on this conveniently passing bandwagon), I find it hard to believe that ministers will be able to resist making a U-turn at some time between now and next May.

© MARTIN H GOODALL

Announcing it twice. Announcing it twice.

I see that Eric Pickles (who perhaps we ought now to refer to as ‘Little Sir Echo’) was sounding off earlier this week about his proposed repeal of section 25 of the Greater London Council (General Powers) Act 1973 (as amended), which provides that for the purposes of what is now section 55(1) of the 1990 Act, the use as temporary sleeping accommodation of any residential premises in Greater London involves a material change of use of the premises and of each part of them that is used for that purpose. Oh, by the way, that particularly pernicious piece of legislation (if you happen to share Uncle Eric’s view) was passed by a Conservative Government, although I suppose today’s Tories would regard the then prime minister, Ted Heath, as a dangerous crypto-socialist.

I wrote about this proposal when it was first announced more than four months ago (see Short-term lets in Greater London, 25 February 2014). I picked up on it from a story in the Evening Standard on 24 February, which reported that Kris Hopkins, who was then a recently appointed junior minister in De-CLoG, had said that ministers intended to scrap this provision, so as to allow short-term lets in Greater London (for example “for a few days while the owners go on holiday”). The demand for short-term accommodation during the 2012 Olympics was cited as the sort of thing that ministers think ought to be catered for.

Uncle Eric’s announcement this week made me think that the details of this proposal had now been published. But not so. We shall have to await the introduction of amendments to the Deregulation Bill, currently wending its weary way through parliament (having been carried over from the last session). I have no doubt that the amending legislation when it emerges will turn out to be hedged about with all sorts of ‘ifs’ and ‘buts’ to prevent the sort of free-for-all that I warned against in my February commentary. So I am re-assured that Uncle Eric, despite his completely contrary intentions (if his bullish speeches are to be believed), will be making yet more work for the planning lawyers.

That is what I like about ‘reforms’ of the planning system. They just make planning law even more complicated. In the words of an old Flanders and Swann song – “Oh, it all makes work for the working man to do.”

© MARTIN H GOODALL

Infrastructure Bill

Hardly had the ink dried on the Queen’s Speech than the Infrastructure Bill was introduced in the House of Lords on the very next day (5 June) and had its First Reading - a pure formality, without debate. The Second Reading debate in the Lords is currently scheduled for Wednesday 18 June.

Conspicuous by their absence from the Bill are the promised provisions to make it easier to promote exploration for oil and gas and its extraction by ‘fracking’, including horizontal drilling under land not owned by the developers. Clearly it would have made a nonsense of the current consultation exercise if these provisions had been shoved into the Bill right from the word ‘Go’. I have no doubt, however, that the government will introduce these provisions as amendments to the Bill just as soon as they decently can, after perfunctory consideration of responses to the current consultation exercise. This will have the (possibly unintended) bonus for the government of cutting down on the opportunities for parliamentary debate on this subject if, for example, these amendments only emerge at committee stage or even report stage, as the Bill progresses through parliament.

I won’t waste space on the procedural amendments in respect of nationally significant infrastructure projects (Clauses 17 to 19). Pending the introduction of the ‘fracking’ clauses at a later date, the most interesting provision in the Bill in its present form is Clause 20, on the deemed discharge of planning conditions.

This will introduce a new Section 74A in the Town and Country Planning Act 1990, which will give the Secretary of State power to make a development order (which in practice will presumably take the form of an amendment of the Development Management Procedure Order) providing for the deemed discharge of a condition or limitation in a planning permission which requires the consent, agreement or approval of a local planning authority to any matter.

The new provision will come into play if the applicant has applied to the LPA for the consent, agreement or approval required by the condition, the period for the authority to give notice of their decision on the application has elapsed without that notice having been given, and the applicant has then taken the further steps (if any) which will be prescribed in the amended DMPO.

The amendment to the DMPO may provide that the deemed discharge procedure will not apply in relation to certain types of condition, in relation to certain types of planning permission, or in relation to certain types of development, as well as in any other prescribed circumstances.

There will be an ‘opt out’, where the applicant and the LPA both agree, before or after planning permission is granted, that this provision should not apply in a particular case.

The position relating to appeals is not entirely clear. The DMPO amendment may make provision for section 78(2) not to apply, or to apply with modifications, in cases where certain further steps (not yet identified) have been taken by the applicant.

The amended provisions of the DMPO will apply only where the original planning application is made after the DMPO amendment order comes into force. So it’s not the date of the planning permission which imposes the condition that counts - the planning application itself must post-date the effective date of the DMPO amendment.

I don’t propose to follow this Bill through parliament in all its stages, but I will keep an eye on the Bill for any significant amendments, especially the ‘fracking’ clauses, when they are introduced.

© MARTIN H GOODALL

More planning changes in the Queen’s Speech

I had not expected that we would get much more in the way of new planning legislation before the next General Election but, once again, planning reform featured in today’s Queen’s Speech, at the commencement of the final session of this parliament.

Announcing an Infrastructure Bill, Her Majesty said, “My government will introduce a Bill to bolster investment in infrastructure and reform planning law to improve economic competitiveness. The Bill will enhance the United Kingdom’s energy independence and security by opening up access to shale and geothermal sites and maximising North Sea resources. Legislation will allow for the creation of an allowable solutions scheme to enable all new homes to be built to a zero carbon standard and will guarantee long-term investment in the road network.”.

On increasing the housing supply, she said “My government will increase housing supply and home ownership by reforming the planning system, enabling new locally-led garden cities and supporting small house building firms.” and added “My ministers will continue to promote the Help to Buy and Right to Buy schemes to support home ownership.”

Government press offices have jointly published a lengthy briefing note on today’s Queen’s Speech to flesh out the bare bones of the legislative programme announced from the throne. The proposed Infrastructure Bill in particular seems to be a pot pourri of various measures that go well beyond the provision of infrastructure.

I propose to concentrate solely on those elements in the Bill that are directly relevant to planning as such. Among these elements, the Bill will simplify the process for making changes to Development Consent Orders (DCOs) for nationally significant infrastructure projects by speeding up non-material changes to a DCO, and allowing simplified processes for material changes. It will allow the Examining Authority to be appointed immediately after an application has been accepted and for the panel to comprise two inspectors, in the hope of speeding up the process and saving money.

The Bill will also allow certain types of planning conditions to be discharged upon application if a local planning authority has not notified the developer of their decision within a prescribed time period, reducing unnecessary delay and costs.

“Subject to consultation” [Pause for hollow laughter], the Bill is intended to make it possible for oil and gas companies to conduct underground exploration and extraction (by ‘fracking’) of oil and gas from shale deposits below land not owned either by them or by the owner of the land on whose land the shaft is sunk.

The Government is at pains to point out that this legislation is entirely dependent on the outcome of their current consultation exercise, but you would have to be extremely naïve to believe that the government will be persuaded to desist from pressing ahead with this legislation, irrespective of what consultees may say about it. The press release itself stresses the government’s enthusiasm for pressing on with “full and rapid implementation” of this project to deliver “at least 3-4 billion barrels of oil equivalent more than will otherwise be recovered over the next 20 years, bringing over £200 billion additional value to the UK economy. The Government accepted Wood’s recommendations in full in February 2014, and is introducing measures in this Bill to put the principle of Maximising Economic Recovery of petroleum in the UK into statute.” Not much sign there of a willingness to take on board the strong opposition that is likely to be revealed by the current consultation exercise.

There are also proposals regarding the energy efficiency of new homes. This will take the form of some slight relaxation of the commitment to implementing a zero carbon standard for new homes from 2016. A minimum energy performance standard will be set through the Building Regulations. The remainder of the zero carbon target, the government says, can be met through cost effective off-site carbon abatement measures – known as ‘allowable solutions’ - as an alternative to increased on-site energy efficiency measures or renewable energy (such as solar panels). Small sites, which are most commonly developed by small-scale house builders, will be exempt. What constitutes a “small site” for this purpose will be the subject of consultation, and will then be defined in the regulations.

The Zero Carbon Home standard will be set at Level 5 of the Code for Sustainable Homes, but the legislation will allow developers to build to Level 4 as long as they offset through the allowable solutions scheme to achieve Code 5. Energy efficiency requirements for homes are set out in the Building Regulations ( made under powers in the Building Act 1984), but there are insufficient powers in that Act to introduce off-site allowable solutions, so the Infrastructure Bill is expected to contain the necessary enabling powers for this.

Finally, there is a proposed provision that is unlikely to excite much interest among the general public, but which causes considerable concern to conveyancers and to planning lawyers. The Bill will transfer statutory responsibility for local land charges registers (currently maintained by local authorities) to the Land Registry, who will in future be responsible for dealing with local land charges searches submitted by conveyancers on behalf of homebuyers.

Local authorities have built up considerable local knowledge and expertise in the maintenance of their LLC registers and related databases, and are uniquely well placed to be able to give accurate (though not invariably infallible) answers to LLC searches, related enquiries and other queries. This local knowledge and expertise will be entirely lost if or when the LLC registers are transferred to the Land Registry. It is likely to cause considerable difficulty for purchasers and their solicitors, to homeowners and not least to local authorities themselves, especially when contemplating enforcement action, where accurate local records are essential.

This proposal seems to be part of a wider aim to commercialise and even, possibly, to privatise the Land Registry itself, which can only lead to even greater difficulties for all users of the system.

So far as increasing the housing supply is concerned, the Government is proposing In the next session to provide development finance to support smaller builders to develop new homes (through the Builders’ Finance Fund), and to deliver further homes on small sites over the course of its programme. The Government says it will also scale back the imposition of Section 106 levies on small-scale development.

The government also intends to introduce a loan fund to support “up to 10,000” new service plots for custom-build homes, as well as consulting on how to implement their previously announced “Right to Build” to give custom-builders the right to land in their local area. [If the government thinks they will achieve anything like 10,000 self-build or ‘custom-build’ housing starts by this means, they really are living in Cloud-cuckoo-land.]

The government proposes to introduce secondary legislation (a Development Order?) to allow for a locally supported garden city to be built in Ebbsfleet, backed by an Urban Development Corporation, as well as other ‘locally led’ or ‘locally supported Garden Cities. [Quite frankly, I am afraid this is simply ‘pie-in-the-sky’.] The Government says it is also rolling out two further programmes to provide infrastructure support for large-scale, ‘locally supported’ schemes.

More interestingly, from the point of view of those of us involved in day-to-day development management, the government says it will help speed up the time taken for sites granted planning permission to be built out, including reforming “unwieldy procedures and conditions” attached to existing planning permissions, whilst at the same time (they say) protecting environmental safeguards.

They also propose to make further changes to Part 3 of the Second Schedule to the GPDO to make it easier for “empty and redundant buildings” [sic] to be converted into productive use, supporting brownfield regeneration and increase the supply of new homes. The changes introduced this year and last year were certainly not confined to empty and redundant buildings, and I don’t suppose the further changes of use that the government is now proposing to allow will be either.

Meanwhile, the government will be pressing on with its “Help to Buy” scheme. They are convinced that it is not causing a housing bubble in London and the South-east, despite anecdotal evidence to the contrary. In the same way, they are determined to press on with the “Right to Buy” scheme which has caused such a devastating loss of social housing stock, and has significantly worsened the plight of homeless families by depriving them of the opportunity of being re-housed in decent housing in the public sector.

Will this be the last gasp of this government? Frankly, the outcome of the General Election on Thursday 7 May next year is completely unpredictable in light of recent electoral upsets, and I am not sure what direction, if any, will be discernible from the result of tomorrow’s Newark by-election. I still believe that if they are sufficiently ‘spooked’ by continuing unpopularity, the government might yet throw the planning system into Reverse, just as Maggie Thatcher did in 1987. Only time will tell.

© MARTIN H GOODALL

Building shrouds – a wasted opportunity

(Fifth in an occasional series)

Lack of time has prevented me yet again from posting regularly on this blog, but some of my recent travels have thrown up some further examples of building shrouds – this time showing the aesthetic ‘appeal’ of a shroud carrying no advertising.

I photographed two examples yesterday – the first in Bristol and the second in London. Quite frankly neither of these shrouds does anything for the townscape, and commercial shroud adverts in both cases would be infinitely preferable to this messy sight.

These shrouds are usually in place for several months, and it would make sense for temporary permission for the display of a large shroud advertisement to be given for the duration of these works. As I have suggested before, this could usefully take the form of deemed permission under the Control of Advertisements Regulations, rather than being left to the sometimes capricious decision-making process of individual LPAs.

I appreciate that it is possible to display a pictorial shroud (usually a representation of the hidden facade of the building under repair) without advertising, but this is an added expense and so is unlikely to be willingly undertaken by most developers. Nonetheless, in fairness to the “No advertising, please” lobby, here is an example I came across on a flying visit to Brussels a couple of weeks ago, in the Grand Place.

I don’t know who funded the shroud display here (possibly the city council?), but it can’t have been cheap, and as the examples I photographed in Paris in April all explicitly stated, advertising shrouds can contribute to the cost of restoration of the buildings that are being refurbished.

© MARTIN H GOODALL

Comments and queries

In the past, I have published as many comments and queries as possible in this blog, and have attempted to answer most of the questions posed (although there are inevitably situations that are so dependent on their precise facts that is impossible to give any sensible reply on the basis of the inevitably brief summaries provide by correspondents). However, such are the pressures on my time now that it is no longer possible for me to respond to queries in this way.

In future, I am afraid I shall not be publishing detailed queries to which I am unable to respond. These will usually be those queries that pose a specific question about a particular set of facts. Please don’t be offended if queries of this nature fail to appear in future.

If a comment or query raises a point of general interest I may still publish it, with or without some form of response. Comments on particular blog posts that add to the discussion are always welcome, and will nearly always be published, as they have been in the past.

Similarly, I am afraid that I am no longer able to respond to emails requesting ‘a quick answer’ to specific queries. Keystone Law remains willing to accept instructions on substantive planning matters, for which our usual professional charges will apply, although pressure of work within our planning law team may sometimes prevent our accepting instructions, particularly at short notice, and my own commitments may make it necessary for me to refer new work to other colleagues within our team.

I hope this makes the position clear, and that it will avoid too much disappointment at the non-appearance of specific queries in the comments pages.

© MARTIN H GOODALL

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.

© MARTIN H GOODALL