Enforcement notice only partially superceded by planning permission

In an operational development case there may be more than one unauthorised building or in an unauthorised use case there may be a mixed uses on different parts of the site.

An enforcement notice requiring all the buildings to be demolished may be followed by a planning permission to retain one of the buildings.

In an unauthorised use case, an enforcement notice may be followed by planning permission to carry on that use in one part of the site.

There is no rule that the steps in an enforcement notice have to be exercised in full for it to remain effective.

If it were otherwise, a landowner could totally frustrate the effect of an enforcement notice against the unauthorised construction of a building, by obtaining a planning permission for the retention of a smaller building which includes an element of its predecessor.

Section 180 of the Town & Country Planning Act 1990 (“the 1990 Act”) protects from enforcement any development which has had an enforcement notice made against it, and then is the subject of a planning permission, if and to the extent that the retention of that development is not at variance with that later planning permission.

The effect of Section 180 is to cancel the effect of an enforcement notice, but no more or less than than the notice is “inconsistent” with a later planning permission “for any development”.

Section 180 causes the notice to “cease to have effect so far as inconsistent with that permission”.

The protection afforded by section 180 does not depend upon the implementation of the later planning permission. It is triggered by the very fact that the later planning permission is granted.

Nor does Section 180 require that the site in respect of which the planning permission is granted, after the enforcement notice, must be identical to the site against which the enforcement notice has been served.

Nor does Section 180 require the development covered by the later planning permission to be exactly the same as is the subject of the enforcement notice.

Nor does the imposition of conditions on that permission restricting or regulating the development detract from the overriding effect of the later permission.

These principles apply whether the later planning permissions are permissions for changes in the use of land or permissions for operational development.

If a local planning authority serves an enforcement notice against an operational development and planning permission is later granted, the issue for Section 180 is whether or not, and if so to what extent, the enforcement notice is inconsistent with that permission?

The main question is not whether the later planning permission permits the unauthorized development to be retained on its own, but whether there are elements of development common to both the permission and the enforcement notice.

If there is fabric which forms part of what the planning permission approved, the enforcement notice cannot thereafter be relied upon to attack that much of the development. There may be parts of the development subjected to the enforcement notice which are physically subsumed in the development for which planning permission is later granted.

However, the enforcement notice will remain effective against so much of the fabric as is not approved by the later planning permission.

An unauthorised vertical structure permitted up to 7 metres high on a particular alignment is consistent with a later permitted structure of similar materials 10 metres tall on the same alignment, even if some adaptation and further construction will be needed in order to incorporate the original 7 metres into the taller development covered by the subsequent permission. There is no need to take the original 7 metre wall down in its entirety only to be put up again on the same alignment and using the same or similar materials.

In Goremsandu v Secretary of State for Communities and Local Government & Anor [2015] a pitched roof and an area projecting beyond the building line, part of property subjected to an enforcement notice, were not to be retained in the development later covered by planning permission so the Court of Appeal said the demolition of those parts could not be inconsistent with the permission.

Indeed the permission was designed to achieve the removal of those unacceptable elements, and the retention of that which was acceptable.

So notwithstanding the operation of Section 180 on the remainder of the development, the enforcement notice still required removal of the pitched roof and the projecting part of the extension.

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