Rapose v London Borough of Wandsworth

Under section 180 of the Town and Country Planning Act 1990, a later planning permission cancels an enforcement notice only to the extent of inconsistency. The protection arises when permission is granted, not when it is implemented. It may apply where the permission covers only part of the enforced development, or where that development forms part of a larger scheme. The court must identify the common physical elements and decide the extent of inconsistency as a matter of fact and degree. Conditions requiring comprehensive development do not, without clear wording, make otherwise authorised works unlawful merely because they are carried out piecemeal. A local planning authority considering works in default must address those issues. Failure to do so vitiates the decision.

The claimant sought judicial review of the Council’s resolution of 15 March 2007 to exercise powers under sections 178 and 179 of the Town and Country Planning Act 1990. The powers were to be used to remove an unauthorised extension at 1 Algarve Road and carry out associated rebuilding works required by a 2001 enforcement notice.

After the enforcement notice had taken effect, the Council granted planning permission in 2003 for a larger comprehensive redevelopment incorporating the relevant properties and adjoining land. The claimant argued that the permission retrospectively authorised at least part of the existing extension and therefore limited the enforcement notice under section 180. The Council argued that the permission authorised only the comprehensive scheme, had not been implemented, and did not authorise retention of the freestanding extension. The central issue was whether, and to what extent, the later permission was inconsistent with the enforcement notice.

1. Application allowed; decision quashed. The Council’s resolution authorising direct action against the whole extension was unlawful because the committee had not considered the effect and extent of section 180 of the Town and Country Planning Act 1990.
2. Section 180 operates when later planning permission is granted. It cancels an enforcement notice, rather than merely suspending it, but only so far as the notice is inconsistent with the permission. The provision is not confined to identical sites or precisely identical development. It can apply where permission covers part of the enforced works within a larger scheme and where conditions are attached. Non-compliance with conditions may be addressed separately.
3. The approved drawings were incorporated into the 2003 permission. To the extent that they showed development already carried out, the permission approved its retention. The existing extension materially coincided with part of the approved development. Differences in height, and the fact that walls were internal in the approved scheme but external in the existing extension, did not prevent the common fabric from falling within section 180. The enforcement notice remained effective against elements not approved.
4. Condition 9, requiring comprehensive implementation and prohibiting occupation before completion of all works, did not make the commencement of individual authorised operations unlawful. Properly construed, it regulated occupation and completion. It did not prevent material operations contributing to the comprehensive development from being lawful. The court declined to determine the separate question of lawful implementation under pre-commencement conditions.
5. The Council’s decision was vitiated because the committee did not determine the factual extent of congruence between the extension and the approved scheme or temper enforcement accordingly. The application succeeded and the decision of 15 March 2007 was quashed.