Maldon District Council v Hammond

Deemed planning permission under section 173(11) of the Town and Country Planning Act 1990 is confined to a breach of planning control alleged in the enforcement notice and capable of being remedied by it. It does not validate a separate activity which the notice did not allege and could not require to cease.

A local planning authority need not search a planning unit for every possible breach merely to avoid deemed permission. Ministerial guidance cannot enlarge the statutory provision. The focus is the particular breach identified in the notice.

The council obtained injunctions from Buckley J requiring Mr Hammond to remove vehicles, structures, hardstanding, soil and rubble from land at Mill Road and restraining its residential use. The judge found that the evidence did not establish ten years of vehicle storage and repair at a level amounting to a material change of use.

Permission to appeal was confined to whether earlier enforcement notices had conferred deemed planning permission for vehicle-related activities under section 173(11) of the Town and Country Planning Act 1990. Mr Hammond contended that the notices could have required those activities to cease but did not do so. The central issue was the scope of deemed permission following alleged under-enforcement.

1. Appeal dismissed. Brooke LJ held, with May LJ agreeing, that Buckley J had been entitled to require the removal of the wrecked vehicles. The stay imposed pending the appeal was lifted.
2. Section 173(11) of the Town and Country Planning Act 1990 operates only in relation to a breach of planning control alleged by the enforcement notice. It may deem permission for development or an activity which the notice could have required to be removed or stopped, but which it did not require to be remedied after compliance with the notice.
3. The notice concerning the unauthorised workshop and hardstanding could not require vehicle repair to cease in the abstract. Repair activity was conducted in the workshop, and its demolition was required. Further, the council had no sufficient evidence in 1997 that vehicle repair was then a distinct breach of planning control, rather than activity ancillary to residential use.
4. The court applied the construction adopted in Scott v Secretary of State for the Environment, Transport and the Regions (CAT 16th October 1990). It approved Richards J's corresponding analysis in Fidler v First Secretary of State [2003] EWHC 2003 (Admin). Guidance in Circular 10/97 could not extend section 173(11), and any suggestion that it granted permission for all remaining uses was too broad.
5. The judge's unchallenged factual conclusion also meant that no qualifying ten-year material change of use had been proved. Authorities concerning unusually extensive hobbies or activities associated with a dwelling did not assist on this evidential record.

• Court of Appeal (Civil Division). The appeal was dismissed by Brooke LJ, with whom May LJ agreed: [2004] EWCA Civ 1073. Sedley LJ had earlier limited permission to the section 173(11) issue and stayed the order pending its determination: [2003] EWCA Civ 1975.
• Queen's Bench Division (Buckley J). On 14 October 2003, Buckley J granted injunctions requiring the removal of vehicles and other material from the land and restraining residential use. No citation for that judgment was stated.