Ahmed v Secretary of State for Communities and Local Government & Anor

On an enforcement appeal, an appellant need not repeat a clearly articulated fall-back proposal under a particular statutory ground. The Inspector must consider the submissions as a whole. Where a proposal is an obvious alternative to total demolition, capable of remedying the breach at less cost and disruption, the Inspector must consider varying the enforcement notice and, where necessary, granting retrospective planning permission for part of the development. The fact that an earlier planning permission has lapsed does not remove that possibility. The Inspector is not required to search generally for solutions, but must address an obvious alternative disclosed by the appellant’s case.

Planning permission had been granted for a three-storey building, but a four-storey building was constructed. The permission later lapsed. Hackney issued an enforcement notice requiring complete demolition and restoration of the site.

The appellant challenged the notice under section 174(2)(f) of the Town and Country Planning Act 1990, arguing that the building could instead be modified to conform to the previously approved scheme. He also appealed under section 174(2)(a), seeking retrospective permission for the building as constructed. The Inspector rejected the appeal and did not consider the modification proposal as a combined exercise of the powers under sections 176 and 177. The issue was whether that failure was an error of law.

1. Appeal allowed and remitted. The Inspector’s decision was legally flawed because he failed to consider an obvious alternative to complete demolition.
2. The statutory scheme gives the Secretary of State broad discretionary powers to deal with the effects of a breach. An enforcement notice may require steps directed wholly or partly to remedying the breach or injury to amenity. The appeal provisions must be read so as to give practical effect to those powers.
3. The authorities establish that an Inspector’s primary task is to consider the proposals advanced by the appellant. The Inspector is not required to search around for solutions. However, where the submissions and site inspection disclose an obvious alternative that would overcome the planning difficulties at less cost and disruption than total removal, the Inspector should consider it and may need to invite further submissions.
4. The appellant had clearly identified under section 174(2)(f) the alternative of modifying the building to conform to the 2005 scheme. It was immaterial that the proposal had not been repeated expressly under section 174(2)(a). The submissions had to be considered as a whole.
5. Although the 2005 permission had lapsed, the Inspector could consider varying the enforcement notice under section 176(1)(b) together with granting retrospective permission under section 177(1), which expressly permits permission for the whole or part of the matters constituting the breach. The Inspector was not required to grant permission, and could have sought comments from the Council and others, but he was required to address the possibility.
6. The subsequent planning permission granted in 2013 was irrelevant because the appeal had to be determined on the material before the Inspector in 2011.

High Court (Administrative Court): The appellant appealed under section 289 of the Town and Country Planning Act 1990 against the Inspector’s decision of 31 March 2011. The appeal was allowed and the matter was remitted to the Inspector for reconsideration.