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.