Secretary of State for Communities and Local Government v Ioannou

An enforcement appeal on ground (f) cannot secure planning permission for a proposed alternative development which falls outside the matters identified in the enforcement notice. Permission treated as granted under section 173(11) of the Town and Country Planning Act 1990 is confined to buildings, works or activities which existed when the notice was issued and which that notice could have required to be removed or ceased.

The Wheatcroft principle does not enlarge those statutory limits. Nor is there a free-standing “obvious alternative” test permitting an inspector to approve development beyond them. Ground (f) nevertheless permits less onerous steps where those steps remedy the injury to amenity caused by the identified breach.

An enforcement notice concerned the unauthorised conversion of a single dwelling into five flats. The respondent appealed on grounds (a), (d), (f) and (g) under section 174(2) of the Town and Country Planning Act 1990. The Inspector dismissed grounds (a), (d) and (f), but extended the compliance period on ground (g) so that a proposed three-flat scheme could be explored through a separate planning application.

Ouseley J allowed a statutory appeal in [2013] EWHC 3945 (Admin). He held that the Inspector should have considered whether ground (f), combined with section 173(11), could enable the three-flat scheme to be implemented. The Secretary of State appealed. The sole substantive issue was whether varying the notice on ground (f) could cause the proposed scheme to be treated as having retrospective planning permission under sections 173(11) and 73A.

1. Appeal allowed unanimously. The Inspector was correct that he lacked power to enable the proposed three-flat scheme through ground (f). The order of Ouseley J was set aside and the Inspector’s decision restored.

2. The power to allow an appeal on ground (f) is not a power to grant planning permission. Planning permission granted in response to an enforcement appeal may be granted only under section 177(1) of the Town and Country Planning Act 1990. That power is confined to the whole or part of the matters identified in the notice as constituting the breach of planning control.

3. Section 173(11) likewise could not authorise the proposed scheme. Its language confines deemed permission to buildings, works or activities which existed when the enforcement notice was issued and which that particular notice could have required to be removed or ceased. Section 73A reinforces that conclusion because it concerns development already carried out, rather than development proposed for the future. The reasoning in Fidler v First Secretary of State [2004] EWCA Civ 1295 was fatal to the respondent’s case.

4. The Wheatcroft principle did not apply. Although it may permit conditions which reduce the extent of existing development granted retrospective permission, it cannot authorise permission for proposed development outside the statutory scope of sections 173(11) and 73A.

5. The observations in Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744, and their treatment in Moore and Ahmed, did not create a free-standing “obvious alternative” test. Those judgments concerned alternatives falling within the statutory scope of the enforcement appeal. Judicial statements must be understood in their factual and legal context and should not be treated as enactments of universal application.

6. Ground (f) remains effective. Its second limb permits less onerous steps where, although they do not remedy the breach completely, they remedy the resulting injury to amenity. That exercise may involve planning judgment and overlap with ground (a), but it cannot obtain permission which section 177(1) withholds. An alternative outside the notice may instead be pursued by a separate application, with the compliance period extended on ground (g) where appropriate.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed unanimously. The order of Ouseley J was set aside and the Inspector’s decision restored: [2014] EWCA Civ 1432.

2. High Court, Administrative Court: Ouseley J allowed the respondent’s appeal under section 289 of the Town and Country Planning Act 1990, holding that the Inspector had failed to consider a relevant power under ground (f): [2013] EWHC 3945 (Admin).

3. Planning Inspector: The Inspector dismissed the appeals on grounds (a), (d) and (f), but allowed ground (g) by extending the compliance period from two to six months.