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

On an appeal against a planning enforcement notice, an inspector must consider an obvious alternative which emerges from the appellant’s submissions and may overcome the planning difficulties at less cost and disruption. The inspector need not devise the appellant’s case or search generally for solutions.

A proposal advanced under one statutory ground may require consideration under another. Where ground (a) is engaged, section 177(1) of the Town and Country Planning Act 1990 permits permission for part of the matters identified in the notice. Whether an earlier authorised scheme constitutes such a part is a matter of planning judgment. The written representations procedure does not remove the duty to consider an obvious alternative, and further information may be requested where necessary.

A local planning authority required the complete removal of an unauthorised four-storey building which materially departed from an earlier approved three-storey scheme. The owner appealed against the enforcement notice under section 174(2)(a), (e) and (f) of the Town and Country Planning Act 1990. The inspector refused permission for the building as constructed and concluded that, because the earlier permission had expired, the breach could be remedied only by complete removal.

On an appeal under section 289, the High Court held that the inspector should have considered granting retrospective permission for the earlier scheme and varying the notice accordingly: [2013] EWHC 2084 (Admin). The Secretary of State appealed. The central issue was whether the earlier scheme was an obvious alternative which the inspector was legally obliged to consider, although it had been advanced under ground (f), rather than as the scheme for which permission was expressly sought under ground (a).

1. The Secretary of State’s appeal was dismissed. The inspector erred in law by failing to consider the earlier approved scheme as an obvious alternative. An inspector’s primary task is to determine the proposals placed before him, and he has no general duty to search for solutions or make an appellant’s case. Nevertheless, where the material reveals an obvious alternative which may overcome the planning difficulties at less cost and disruption than complete removal, the inspector must consider it. The duty stated in Moore was correctly applied by the deputy judge.

2. The obvious-alternative principle is capable of operating across the statutory grounds of appeal. A proposal advanced under ground (f) may require consideration under ground (a), just as a point advanced under another ground may require consideration under ground (f). The owner’s submissions made the essential point that modification to the previously approved scheme would make the development acceptable in planning terms. Those submissions should have alerted the inspector to the possible grant of permission under ground (a).

3. Section 177(1) of the Town and Country Planning Act 1990 permitted planning permission to be granted for the whole or any part of the matters stated in the notice as constituting the breach. It was therefore potentially open to the inspector to grant permission for the earlier scheme if, as a matter of planning judgment, that scheme could be regarded as part of the development as built. The inspector made no such judgment, and the Court of Appeal could not determine what conclusion he would reasonably have reached.

4. If permission had been granted for the earlier scheme, the inspector had power to vary the enforcement notice so as to give effect to that decision. Wyatt did not preclude that course because, unlike Wyatt, the present appeal included ground (a). Richmond upon Thames and Runnymede concerned permission extending beyond the matters identified in an enforcement notice and therefore did not govern a proposal which might constitute part of those matters.

5. The written representations procedure did not remove the duty to consider the alternative. The inspector could have sought further information if required. Questions concerning changed planning considerations, possible injustice to the authority and whether the alternative would overcome the planning difficulties were matters for the inspector’s assessment.

6. The owner’s unopposed cross-appeal on costs was allowed. The High Court’s no-order-as-to-costs direction was set aside and the Secretary of State was ordered to pay the agreed sum of £22,700 for the High Court proceedings.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed and the owner’s cross-appeal concerning costs was allowed: [2014] EWCA Civ 566.

2. High Court, Administrative Court: The owner’s section 289 appeal was allowed and the enforcement appeal was remitted to the inspector for reconsideration, but no order for costs was made: [2013] EWHC 2084 (Admin).

3. Secretary of State’s inspector: The inspector dismissed the owner’s appeal against the enforcement notice under section 174 of the Town and Country Planning Act 1990.