Secretary Of State For Environment, Transport & Regions & Anor v Wyatt Brothers (Oxford) Ltd

An enforcement notice may require combined measures under Town and Country Planning Act 1990, section 173(4)(a) and (b); the word “or” is not necessarily disjunctive. However, where the authority has proceeded under section 173(4)(a), an appeal under section 174(2)(f) is confined to whether the requirements exceed what is necessary to remedy the breach. It cannot reopen planning merits or amenity arguments that belonged to a ground (a) appeal. Section 176(1)(b) is a correction power, comparable to a slip rule. It cannot be used to make a substantive reduction in the requirements of an enforcement notice or to circumvent the statutory structure for deemed planning applications.

Wyatt Brothers appealed against three enforcement notices concerning waste deposited at Waterstock Golf Course. An Inspector appointed by the Secretary of State rejected evidence and argument directed to whether the required removal and restoration works exceeded what was necessary to remedy injury to amenity. HH Judge Rich QC allowed Wyatt Brothers’ statutory appeal on that issue.

The Secretary of State appealed. Wyatt Brothers cross-appealed on the scope of section 174(2)(f). The central questions were whether an enforcement notice could pursue both statutory remedial purposes, whether ground (f) permitted general amenity and planning arguments where ground (a) had not been pursued, and whether section 176(1)(b) authorised a substantive variation of the notices.

1. Appeal allowed; cross-appeal dismissed. The decision of HH Judge Rich QC was set aside and the Inspector’s decision restored.
2. The court held that section 173(3) permits a local planning authority to “under-enforce”. Section 173(4)(a) and (b) identify different remedial purposes, but the word “or” does not prevent an enforcement notice from combining partial restoration with work directed to remedying injury to amenity. The statutory phrase “any of the following purposes” supports that construction.
3. Judge Rich’s use of “solely” in describing the availability of the amenity limb of ground (f) was too restrictive. Nevertheless, the Inspector was correct in this case. Reading the notices as a whole, the authority had pursued the purposes in section 173(4)(a). Since Wyatt Brothers had not pursued ground (a), they could argue under ground (f) only that the steps exceeded what was necessary to remedy the breach. They could not introduce planning-merits or general amenity evidence which should have been advanced through the deemed planning application.
4. Section 176(1)(b) confers a wide discretionary power to vary an enforcement notice where the variation would cause no injustice to the appellant or authority. But the power forms part of the appellate structure and is principally a correction power. It cannot be used to convert a notice requiring restoration into one requiring less, because that would provide an alternative route to relief available through ground (a) and undermine the consequences of failing to pursue that route.
5. The Inspector was therefore entitled to restrict evidence and argument which were bound to fail. Costs were awarded to the Secretary of State in the appeal and below; the County Council’s costs were left to lie where they fell.

• Court of Appeal (Civil Division): Secretary Of State For Environment, Transport & Regions & Anor v Wyatt Brothers (Oxford) Ltd, [2001] EWCA Civ 1560. Appeal allowed on ground 2, cross-appeal dismissed, and the Inspector’s decision restored.
• High Court, Queen’s Bench Division: HH Judge Rich QC, sitting as a Deputy High Court Judge, allowed Wyatt Brothers’ appeal against the Inspector on ground 2 only.
• Inspector appointed by the Secretary of State: dismissed the relevant arguments under ground (f) and varied the notices by clarification. Those variations were not challenged.