Koumis v Secretary of State for Communities and Local Government

In determining a planning permission’s terms, the court construes the permission and any incorporated plans. Where the permission is ambiguous about the approved plans, extrinsic evidence may be considered to establish which plan was approved. A plan’s approval stamp is relevant but does not make it conclusive.

An inspector may take a broad planning approach when comparing unauthorised development with the development required by an enforcement notice. Detailed objections need not be addressed individually where the inspector has dealt with the principal planning effects. An inspector may also consider whether the appropriate course for extending compliance time is an application to the local planning authority under the Town and Country Planning Act 1990.

Mr Andy Koumis challenged an inspector’s decision dismissing appeals concerning a building containing 11 flats constructed in breach of planning control. The inspector had refused retrospective planning permission and upheld the enforcement notice, subject to correction and variations.

The challenge concerned the proper height permitted by an earlier planning permission, whether the inspector had to analyse in detail the development which would result from compliance with the enforcement notice, and whether the inspector had wrongly refused to entertain a late appeal concerning the compliance period. A separate argument alleged that a variation notice had rendered the enforcement notice a nullity.

1. Nullity argument. The enforcement notice originally specified that it would take effect on 22 July 2008, with three months for compliance. Because an appeal had been brought, its operation was suspended under section 175(4) of the Town and Country Planning Act 1990. The variation notice of 4 May 2012 purported to make the compliance period run from that date. Assuming R (Lynes) v West Berkshire DC [2002] EWHC 1828 (Admin) was correctly decided, the variation itself, rather than the enforcement notice, was the act potentially lacking legal effect. The later corrected variation therefore did not make the enforcement notice a nullity. The argument failed.
2. Construction of the 2005 permission. Interpretation of a planning permission is a question of law for the court. The permission referred to the application and identified a drawing, but did not provide that only a document bearing an approval stamp formed part of the permission. Applying Barnett v Secretary of State for Communities and Local Government [2010] 1 P&CR 8 and R v Ashford BC ex p Shepway DC [1999] PLCR 12, where the grant is ambiguous as to the approved plans, extrinsic evidence may establish which plan was approved. The inspector was entitled to conclude on the balance of probabilities that the approved scheme had a 9.5-metre ridge height. Her reasons were sufficiently clear under South Buckinghamshire District Council v Porter (2) [2004] 1 WLR 1953.
3. Effect of the enforcement notice scheme. The inspector was entitled to assess the principal planning consequences in broad terms. She identified the excessive mass, shape and height of the existing roof, and concluded that compliance with the enforcement notice would produce a less prominent and more appropriate building and materially reduce harm to neighbours. The detailed uncertainties relied upon by Mr Koumis did not constitute a principal controversial issue requiring separate treatment.
4. Compliance period. The inspector was entitled to conclude that the ground (g) appeal was raised too late. Since she had power to vary the enforcement notice and Enfield had conceded that six months was reasonable, she could conclude that any further adjustment should be pursued through the local planning authority’s power under section 173A. That approach did not render the statutory appeal ground nugatory.
5. The application to quash the refusal of retrospective planning permission was unsuccessful. The appeal against the enforcement notice was dismissed. Grounds 4 and 5 were no longer live because of the variation notice of 8 May 2012.

The judgment records that earlier inspector decisions had been quashed by consent. The matters were then redetermined by a further inspector, whose decision was challenged in these proceedings.