Barker, R (on the application of) v Brighton and Hove City Council & Ors

A local planning authority must address the statutory criteria for enforcement rationally and take account of material considerations, including its own earlier assessments of planning harm and the purpose of the original permission. A decision not to enforce may be unlawful where it departs from detailed earlier findings without explanation and fails to consider an available enforcement route. The authority is not generally obliged to consult affected neighbours, but failing to do so may contribute to a failure to consider relevant factors. Where planning permission has not been validly implemented, the whole development may be unauthorised. Enforcement for building operations is subject to the four-year limit, while other breaches, including an unlawful change of use, may attract the ten-year limit under the Town and Country Planning Act 1990.

The claimant sought judicial review of Brighton and Hove City Council’s decision that it would not be expedient to take enforcement action concerning a newly built dwelling behind 14 Upper Hollingdean Road. The council had previously found breaches of planning control, considered demolition enforcement, and refused retrospective planning permission. It later accepted that its decision was legally flawed because it had failed to consider enforcement of a condition requiring obscure glazing, but argued that the issue was academic because the four-year limitation period had expired.

The court considered whether the decision was irrational and whether relevant planning considerations had been ignored; whether the dwelling and wider development were unauthorised because pre-conditions had not been complied with; and whether enforcement remained available for an unlawful change of use.

1. Decision quashed. The decision of 20 March 2012 was perverse and legally flawed. The planning officers failed to engage with the council’s earlier assessments that the development caused unacceptable harm to neighbouring amenity and privacy and that demolition enforcement was expedient.
2. The officers also failed to consider the importance of the original design objective that the dwelling should remain below the boundary screening. They did not properly address the overlooking caused by the Velux windows, the deteriorating green roof, or the effect of the proposed boundary-wall solution on the neighbours.
3. Consultation with affected neighbours was not legally required. However, the failure to consult contributed to the failure to take account of relevant matters, including the practical effect and acceptability of increasing the boundary wall.
4. Under section 172(1) of the Town and Country Planning Act 1990, enforcement depends on both a breach of planning control and expediency, having regard to the development plan and other material considerations. The council was entitled to conclude that the development was unauthorised because pre-conditions concerning materials and landscaping had not been approved. The principle in Whitley & Sons v Secretary of State for Wales applied.
5. The building operations were substantially completed by late 2008, so the four-year limitation period for building operations had expired. Nevertheless, the council had to reconsider whether enforcement was appropriate for the unlawful change of use from B1/B2 industrial use to C3 residential use, for which the ten-year period applied.
6. The claim for judicial review was granted. The council was ordered to reconsider the outstanding enforcement issues in light of the judgment.