Tapecrown Ltd v First Secretary of State & Anor

On an enforcement appeal under section 174(2)(f), an inspector must consider whether the breach can be remedied by measures short of complete removal which are acceptable in both planning and amenity terms. This may require considering modifications to the development and conditional planning permission.

That duty does not require an inspector to devise a professionally represented appellant’s case or search generally for alternatives. An appellant should ordinarily identify any fall-back position. But where an obvious alternative arises from the submissions and site inspection, the inspector may consider it and fairness may require an opportunity for comment.

Tapecrown erected an agricultural building and adjoining hardstanding. It contended that the development benefited from permitted development rights under the Town and Country Planning (General Permitted Development) Order 1995. An inspector upheld an enforcement notice, finding that the development exceeded the relevant area limit and that the building was not designed for agricultural purposes.

On the deemed planning application and the ground (f) appeal, the inspector rejected removal or alteration of the hardstanding and permanent blocking of openings as adequate alternatives to complete removal. Burton J quashed that decision. The Secretary of State appealed, principally contending that the judge had imposed excessive evidential and procedural duties on the inspector.

The central issue was whether the inspector had adequately considered whether a modified building and reduced hardstanding could be made acceptable in planning terms.

1. Appeal dismissed. The court upheld Burton J’s order quashing the inspector’s decision, although on narrower grounds, and remitted the matter to the Secretary of State for reconsideration.

2. Under section 174(2)(f) of the Town and Country Planning Act 1990, read with sections 173 and 177, an inspector has wide powers to consider a remedy short of complete removal. Having found a breach of planning control, the inspector must consider not only whether proposed works would bring the development within permitted-development rights, but whether proposed modifications would make it acceptable in planning and amenity terms. If so, the notice may be modified and permission may be granted subject to conditions.

3. The inspector’s reasoning was inadequate. He correctly concluded that removing hardcore alone would not bring a building which was not designed for agricultural purposes within Class A. But, when considering permanent blocking of the openings and re-cladding, he did not decide the distinct question whether those alterations, together with removal of all or part of the hardstanding, would make the building acceptable under the relevant planning policies. He instead returned to the Class A area limit.

4. It was at least arguable that a suitably modified building, if required for agriculture, would fall to be assessed under policies applicable to agricultural buildings rather than as an industrial structure. The inspector had made no finding on agricultural need. The court therefore could not treat the planning merits as pre-judged on remittal.

5. The court declined to formulate general procedural rules for written-representations appeals. A professionally advised appellant should normally state any fall-back case, and an inspector need not construct it. However, enforcement is remedial rather than punitive. Where an obvious, less disruptive alternative emerges, the inspector may consider it and fairness may require notice to the parties.

• Court of Appeal (Civil Division) The Secretary of State’s appeal was dismissed. The court upheld the quashing of the inspector’s decision and remitted the matter for reconsideration: [2006] EWCA Civ 1744.

• High Court Burton J allowed Tapecrown’s appeal and quashed the inspector’s decision.

• Planning inspector The inspector upheld the enforcement notice, refused retrospective permission and rejected the ground (f) appeal, subject only to extending the compliance period.