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

An enforcement appeal must address the legal and factual issues that determine whether there has been a breach of planning control. Where external building works are admitted, the decision-maker must determine whether they constitute development requiring permission, including whether permitted development rights apply. A decision letter must give intelligible and adequate reasons on the principal controversial issues. The court will not supply missing reasoning. An inspector is not generally required to devise an alternative case or remedy which the appellant has not advanced. The principle concerning retention of an existing use does not require retention of buildings erected or altered in breach of planning control.

An enforcement notice alleged the erection of a dwelling in the rear garden of residential premises and required its demolition. The appellant appealed under section 174(2)(b) of the Town and Country Planning Act 1990, contending that no dwelling had been erected and that an existing garage had merely been refurbished.

The inspector found that the building was a self-contained residential unit and dismissed the ground (b) appeal. The decision letter did not address whether the external works required planning permission or fell within the permitted development rights in the Town and Country Planning (General Permitted Development) Order 1995. The central issues were whether the reasoning was legally adequate and whether the inspector had to consider alternatives to demolition.

1. Appeal allowed on ground (b). The matter was remitted to the Secretary of State for redetermination.
2. The admitted external works, including replacement of the pitched roof by a flat roof, raised a fundamental issue under sections 55 and 57 of the Town and Country Planning Act 1990. The inspector had to determine whether the works were building operations affecting external appearance and whether they fell within the permitted development rights in Class E of Part 1 of the Town and Country Planning (General Permitted Development) Order 1995. The decision letter did not address the height and boundary requirements. That omission was material because, if the works were lawful, a material change of use did not necessarily follow.
3. Applying S Bucks DC v Porter (No 2) [2004] 1 WLR 1953, the reasons had to enable the reader to understand how the principal important controversial issues, including issues of law and fact, had been resolved. The court could not read missing reasoning into the decision letter. A short explanation might have sufficed, but none was given.
4. The inspector was not required to search for an alternative way of putting the appellant’s case or to consider whether some lesser step than demolition should be required. The appellant had not advanced a ground (a) appeal or argued that the requirements exceeded what was necessary. Tapecrown Ltd v First Secretary of State [2007] 2 P and CR 7 supported that conclusion.
5. The so-called Mansi v Elstree Rural District Council (1965) 16 P&CR 153 doctrine concerned retention of use rights. It did not require the retention of buildings erected or altered in breach of planning control.

The court expressed no view on the merits of any further grounds of appeal or planning application.

Leave to appeal under section 289 of the Town and Country Planning Act 1990 was granted by Judge Ockleton sitting as a deputy High Court judge. The inspector’s decision dismissing the ground (b) enforcement appeal was quashed in substance by remittal.