Koumis v Secretary of State for Communities and Local Government

An enforcement notice is not a nullity merely because a variation later proves defective by reference to facts outside the notice. Under the Town and Country Planning Act 1990, nullity is confined to a failure apparent on the face of the notice, including the notice as varied. The compliance period must nevertheless not begin before the notice takes effect.

A local planning authority may withdraw and replace a defective variation notice. An inspector may use extrinsic evidence to identify which of two identically numbered drawings was incorporated into a detailed planning permission. That is a factual exercise, not interpretation of the permission. An inspector who decides to vary an enforcement notice must give the directions necessary to implement that decision.

The appellant built 11 flats on a site for which permission had been granted for nine flats. A central issue was whether the detailed permission approved a ridge height of 9.5 metres or 10.5 metres. The inspector preferred the 9.5 metre drawing, dismissed the planning and ground (a) enforcement appeals, and upheld the enforcement notice. Although she intended to extend the compliance period from three to six months, she omitted that variation from her formal directions.

Walker J dismissed the appellant’s statutory challenges: [2012] EWHC 2686 (Admin). On appeal, the appellant challenged the inspector’s identification of the approved drawing and reasons, and contended that a later variation notice had made the enforcement notice a nullity. The Court of Appeal also granted permission for a late judicial review claim so that it could determine that nullity issue.

1. Appeal dismissed. Sullivan LJ gave the judgment, with which Sales LJ and Newey J agreed. The court also granted permission to bring the judicial review claim concerning the variation notice, but dismissed that claim.

2. The inspector was entitled to consider extrinsic evidence to decide which of two drawings bearing the same number was the drawing incorporated into the detailed planning permission. This was an exercise in factual identification, not an impermissible use of outside material to interpret the permission. The inspector was entitled to prefer the drawing supported by the contemporaneous committee report and Mr Bennett’s evidence. Her concise reasons were intelligible and adequate.

3. The inspector had erred in law under section 176(2A) of the Town and Country Planning Act 1990. Although she had decided to extend the compliance period, she failed to give a direction implementing that decision. Her statement of intention in an earlier paragraph did not itself vary the notice.

4. That error was academic if the local planning authority’s later notice validly extended the period. The nullity principle in Miller-Mead [1963] 2 QB 196, as applied in Lynes [2003] JPL 1137, was confined to a statutory defect apparent on the face of the enforcement notice. The alleged flaw in the 4 May variation depended on the extrinsic fact that the statutory appeal remained unresolved. The notice was therefore not a nullity. The court accepted that a compliance period must not begin before the notice takes effect.

5. Further, section 173A did not empower the authority to turn a valid enforcement notice into a nullity. A defective variation notice could be withdrawn and replaced by a valid variation notice. The 8 May notice was effective, so there was no purpose in remitting the enforcement appeal.

• Court of Appeal (Civil Division): Appeal dismissed. Permission was granted to pursue the late judicial review claim concerning the variation notice, but that claim was dismissed.

• High Court, Queen’s Bench Division: Walker J dismissed the applications under sections 288 and 289 of the Town and Country Planning Act 1990: [2012] EWHC 2686 (Admin).

• Planning inspector: Dismissed the planning appeal and the ground (a) appeal against the enforcement notice, upheld the notice subject to corrections and variations, and refused deemed planning permission.