Silver v Secretary of State for Communities & Local Government & Anor

When deciding whether planning permission has been implemented, the decision-maker may consider the works as a whole and assess, as a matter of fact and degree, whether they are materially different from the permitted development. A discrete operation, including demolition, does not necessarily implement a permission if the subsequent works substantially depart from it.

The importance of a planning condition is primarily a matter for the Inspector’s planning judgment. The court should be very cautious before interfering. An enforcement notice is construed within its four corners. A defect capable of being raised as a ground of appeal does not necessarily make the notice a nullity.

The claimant challenged two decisions contained in one Inspector’s decision letter concerning an extension at a property in the Belsize Conservation Area. The Planning Appeal under section 288 of the Town & Country Planning Act 1990 concerned refusal of retrospective planning permission. The Enforcement Appeal under section 289 concerned the dismissal of an appeal against an enforcement notice.

The claimant argued that an earlier permission had been lawfully implemented and therefore constituted a fall-back position. He also argued that the enforcement notice was invalid because its reasons did not satisfy the statutory requirements. The central issues were whether the Inspector had applied the correct approach to implementation and whether the notice was a nullity.

1. Outcome. The section 288 application was refused. Permission to appeal against the section 289 decision was granted, but the appeal was dismissed because no error of law by the Inspector had been established.
2. Implementation of permission. The Inspector was entitled, following Commercial Land Ltd v Secretary of State for Transport, Local Government and the Regions and the Royal Borough of Kensington & Chelsea [2002] EWHC 1264 (Admin), to consider what had been done as a whole. The question involved a judgment of fact and degree, including the significance of differences, the similarities with the approved plans and the extent of alteration required. The conclusion that the as-built development differed materially from the 2008 scheme was a permissible exercise of planning judgment.
3. Conditions precedent. Although it was unnecessary to decide the condition issue, the Inspector was entitled to regard the tree-protection condition as going to the heart of the permission. The court should be very cautious about interfering with that assessment, applying the approach in Greyfort Properties Ltd v SSCLG and Torbay Council [2011] EWCA Civ 908.
4. Enforcement notice. The reasons for the notice had to be assessed within its four corners, consistently with Miller-Mead v Ministry of Housing and Local Government [1963] 2 QB 196. The notice identified the breach, referred to the relevant development-plan provisions and gave sufficient reasons for its issue. Matters capable of being raised under section 174(2) did not thereby make the notice a nullity.
5. The Inspector was also entitled, as a matter of planning judgment, to accept that the scaling error affected only some of the Council’s reasons and did not undermine the notice as a whole.

The judgment does not state an earlier judicial decision in the same proceedings. It determined the claimant’s section 288 application and section 289 appeal against the Inspector’s decision letter.