Makanjuola v Secretary of State for Communities and Local Government (Rev 1)

For enforcement purposes, the court must identify the breach of planning control and the development which constituted it. Earlier lawful works are not automatically liable to removal merely because they form part of a structure later used unlawfully. Works may be included in an enforcement requirement where they were integral to, or part and parcel of, the unauthorised use and were not undertaken for a different lawful use capable of continuing after that use ceased. Relief requiring reconsideration of a planning-permission appeal may be refused where independent grounds make the same outcome inevitable.

The appellant owned a residential property comprising an original outbuilding, a later triple-carport development adapted for ancillary accommodation, and subsequent link and warm-room extensions. The local planning authority served an enforcement notice alleging construction and use of a separate detached dwelling.

An Inspector rejected appeals under grounds (a), (c) and (d), and allowed the ground (f) appeal only to the extent of exempting the original outbuilding from demolition. The appellant challenged the Secretary of State’s decision under section 289 of the Town and Country Planning Act 1990, arguing that the Inspector had wrongly treated the whole structure as unlawful. The central issues were whether stages 1 and 2 were lawful, whether demolition could extend to them, and whether the ground (a) appeal required reconsideration.

1. The appeal was allowed and the Inspector’s decision was quashed. Stage 2 was declared immune from enforcement action. The precise steps required to remedy the unlawful stage 3 development were remitted to a fresh Inspector.

2. The Inspector had found that the original outbuilding and the triple-carport development were initially used for purposes incidental to the main dwelling and later adapted for ancillary residential use. Those findings meant that stages 1 and 2 were lawful. The Inspector had instead found that the later extensions and internal alterations changed the development into a separate dwelling house.

3. Under sections 173(3) and 173(4) of the Town and Country Planning Act 1990, enforcement steps must be directed to the breach identified. Works undertaken for a different lawful use, and capable of being used for that purpose after the unlawful use ceased, do not become removable merely because they form part of an existing unlawful structure.

4. The Inspector erred in treating it as established law that any operational development which enabled an unlawful use could be removed. The relevant question was what comprised the unlawful development. The developer’s intentions were irrelevant; the character and purpose of the structure were assessed from its physical and design features.

5. The request to remit the ground (a) appeal was refused. Although the Inspector’s assessment of design might have been affected by the error, his independent findings that the development would cause undue disturbance and that access was inadequate for a separate dwelling necessarily required refusal of planning permission.

The appellant appealed to the High Court under section 289 of the Town and Country Planning Act 1990 against the Secretary of State’s decision following the Inspector’s decision letter issued on 14 May 2012. The appeal was allowed in relation to enforcement, but further reconsideration of ground (a) was refused.