Category Archives: Enforcement Notices

Unlawful use enforcement notice could require removal of structures

In what circumstances may an enforcement notice issued by a local planning authority against an unlawful change of use require the removal of structures connected with that unlawful use?

In the Court of Appeal case of Hydro v Secretary of State for Communities and Local Government & Anor [2016] planning control was breached by the making of a material change of use from residential use to mixed use for residential purposes and as an “Adults Private Members’ Club” coupled with the erection of various structures and the laying of hardstanding to create a car park.

Applying the Divisional Court decision in Murfitt v Secretary of State for the Environment (1980) and the first instance decision in Somak Travel Ltd. v Secretary of State for the Environment (1988) the Court of Appeal said:

“…an enforcement notice directed at a breach of planning control by the making of an unauthorized material change of use may lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself – provided that the works concerned are integral to or part and parcel of the unauthorized use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased. But it can extend to unauthorized changes of use where the associated works, if viewed on their own, would have become immune from enforcement under the four-year rule in section 171B(1) (as in Murfitt) or would be outside the scope of planning control (as in Somak Travel Ltd).”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Service of Enforcement Notice: owner’s address could be from Land Register

In the High Court case of London Borough of Newham v Miah & Anor [2016] it was ruled that if a local authority is not provided with a current address by the owner of property, it is entitled to use the proprietor’s address on the Land Registry’s Land Register, for the land, as the proper address to serve an enforcement notice.

Thus Mr Miah was properly served with the enforcement notice by the Council.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Secretary of State had insufficient evidence to reject appeal inspector’s findings

On an Appeal the Secretary of State is not entitled to disagree with the Planning Inspector’s assessment of the facts unless there is a sound evidential basis for the Secretary of State doing that.

If the Secretary of State does take a different view from an Inspector on issues of fact where there is no sound evidential base for doing that the Secretary of State will be exposed to challenge under the “Wednesbury principle”.

That’s to say, the Secretary of State must not act perversely. His decision may be overturned by the court if the court considers that:

“no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion that he did reach.”

In the High Court case of O’Connor v Secretary of State for Communities and Local Government & Anor [2014] the claimant challenged the Secretary of State’s decision:

– to dismiss his appeal against the refusal of planning permission for residential caravans; and,

– to uphold an enforcement notice to stop them.

The High Court found that the Secretary of State’s decision was due to:

– his view that the Inspector hearing the appeal had failed to take account of the Sequential Test. However the High Court found that this did not “stand scrutiny”; and,

– the Secretary of State’s failure to take any account of the Inspector’s factual conclusions and judgment about flood risk at the appeal site. Nothing in the decision letter explained why the Secretary of State did not accept that the whole of the appeal site should be treated as being within Flood Risk Zone 2 or why the Secretary of State took a different view of the flood risk from his Inspector.

So, the Secretary of State’s conclusion about the flood risk on the appeal site was unreasonable and/ or it failed to take account of material considerations namely the factual conclusions made by the Inspector and the Inspector’s judgment as to the flood risk based upon those factual conclusions. Therefore the Secretary of State’s decision to refuse the planning appeal was tainted by illegality and had to be quashed.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Hardship and imminence of appeal leads court to suspend planning injunction

In London Borough of Newham v Ali & Ors [2014] the trustees of a charity (“the Trust”) operated a faith centre at Abbey Mills Riverine Centre, Canning Road, London E15 (“the Centre”).

The 6.5 hectares of largely vacant land on which the Centre was constructed were of major strategic importance for the delivery of new housing and economic development, in accordance with the policies in the London Plan for growth, regeneration and housing. Policy S1 of the Respondent (“the Council”)’s Core Strategy (adopted in 2012) stated that the Council’s overriding priority was to ensure that growth contributed to achieving economic and social convergence with the rest of London. The site was allocated within the Core Strategy as a “strategic site” in Policy S2. Policy S10 specifically allocated the site for a mix of residential and employment uses so as to contribute to the creation of a new local centre near to West Ham Station.

The Trust intended to use the site as a Muslim foundation and submitted a planning application for change of use of the buildings for worship purposes and for permission for the building extensions already constructed. The Council granted a temporary planning permission for the current faith-based use which expired on 1 November 2006. In February 2010, the Council issued an enforcement notice which required faith-based use to cease and removal of unauthorised buildings, the mosque and the car park.

The Trustees appealed against the enforcement notice. During the resultant public inquiry, the Trust entered into a Unilateral Deed of Undertaking (“the Undertaking”) under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”). The Trustees covenanted within 12 months to submit a planning application for the “Development” i.e. a mixed use development which may include an element of community (including faith-based) use, proportionate to, and not dominating, the overall mix of uses”. In default, they would forthwith carry out the “Removal Works” specified in the enforcement notice.

The Planning Inspector allowed the appeal against the enforcement notice by granting a temporary planning permission for the current use up to 23 May 2013 to allow the Trust to bring forward, during that time, an application for a policy compliant mixed use form of development.

In the event, no valid planning application was made by 28 February 2012. The later application that was made was for a single faith-based use (inconsistently with both the Development Plan and the Undertaking). The application was refused by the Council on 20 December 2012. The Trust had appealed against that decision.

The Council then commenced proceedings to enforce the Undertaking.

The Trust applied to the Council to vary the condition attached to the Inspector’s temporary planning permission to extend it by two years. The Trust now appealed against the non-determination of that application.

The Council then issued an enforcement notice for overstepping the two year limitation on the Inspector’s temporary planning permission. The Trust appealed against that enforcement notice.

The three appeals were to be determined by the Secretary of State under para 3 of Schedule 6 to the 1990 Act because they involved “proposals giving rise to substantial regional or national controversy”. The appeals will be heard by a Planning Inspector at a three week Inquiry in June 2014. The Inspector was expected to make recommendations to the Secretary of State in October 2014.

The Court of Appeal declined to quash the injunctions granted by the High Court. Basically damages would be an inadequate alternative. But they granted a suspension of the injunctions on the following grounds:

First, the appeal against the refusal of planning permission for a single faith-based use was likely to be decided before the end of this year. If successful, the Council could hardly continue to enforce the Undertaking. The court could not predict the outcome of the appeal.

Secondly, to require the Trust to carry out the Removal Works would cause it and the community considerable hardship. That hardship would have served little practical value if the main appeal succeeded. Whilst the enforcement of planning obligations kept parties to their obligations, that purpose should not be given undue weight where a successful appeal would fundamentally change the planning future of the site and where compliance with the injunction would cause serious harm.

Thirdly, there was no particular planning detriment in allowing the current position to continue for a relatively short period until the planning future of the site was finally determined. The Council could not realistically do anything in relation to the site until the outcome of the appeals was known.

Fourthly, a refusal to suspend the injunction would in effect pre-empt the outcome of the appeal against the Council’s refusal to vary the temporary planning permission in such a way as to extend that permission until 23 May 2015.

The power to suspend an injunction under section 106(5) of the 1990 Act should be exercised sparingly. But the facts of this case were unusual. They justified a relatively short suspension in the context of the long and involved planning history of this site.

So the injunction should be suspended until the results of the appeals were known and a short period had been allowed for the parties to consider their positions.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Enforcement notice quashed: breached planning permission could have been regranted

The Court of Appeal case of Ahmed v Secretary of State for Communities and Local Government & Anor [2014] concerned a planning enforcement notice issued by Hackney Council (“the council”) in respect of land at 103-105 Stoke Newington High Street, London. The landowner, Mr Ahmed, appealed to the Secretary of State under section 174 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the notice.

In March 2011 an inspector appointed by the Secretary of State dismissed the appeal.

The question in the appeal was whether the inspector erred in law on the enforcement notice appeal by failing to consider an “obvious alternative” in accordance with the principles discussed in Tapecrown Ltd v First Secretary of State [2006] (“Tapecrown”) and Moore v Secretary of State for Communities and Local Government [2013].

The “obvious alternative” relied on was the grant of planning permission for a scheme previously authorised by planning permission in 2005, which had been departed from, resulting in the breach of planning control that was the subject of the enforcement notice.

The court said the inspector had erred. The inspector’s reasoning was that he did not have the power to require Mr Ahmed to fall back on the 2005 scheme rather than removing the building as a whole.

But that power had potentially existed through the route of granting planning permission for the 2005 scheme under an earlier ground.

That was a route that the inspector had failed to consider.

Mr Ahmed had not expressly relied on that earlier ground but Mr Ahmed’s submissions under a later ground should have alerted the inspector to that possibility as an obvious alternative.

The Secretary of State argued that it was not “an obvious alternative which would have overcome the planning difficulties, at less cost and disruption than total removal” (the words used by Lord Justice Carnwath in Tapecrown).

However it would have been a matter for the inspector to assess whether the 2005 scheme would have overcome the planning difficulties at less cost and disruption than total removal of the building.

He had made no such assessment because he had not applied 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 2005 scheme upon the conditions imposed at that time and under that permission.

Though the enforcement notice had not suggested any such change, but rather, relied on the differences between the 2005 scheme and the development as built.

It would have been for the inspector to decide whether a variation of the enforcement notice resulting from the grant of permission for the 2005 scheme would cause any “injustice” to the local planning authority within section 176(1) of the 1990 Act, though again none had been suggested.

In the circumstances, the fact that there would have been no fresh consultation on the 2005 scheme would not have been a fatal objection to the inspector taking this course.

Therefore the Secretary of State’s appeal against the quashing of the enforcement notice was rejected.

This blog has been posted out of general interest. It does not remove the need for bespoke legal advice in individual cases.