Elmbridge Borough Council v Secretary of State for Communities And Local Government & Anor

On an enforcement appeal under the Town and Country Planning Act 1990, an inspector cannot use a ground (f) appeal to require unauthorised development to comply with a lapsed planning permission where there is no ground (a) appeal or effective deemed application for permission. That would exceed the statutory remedial power and effectively grant planning permission. Whether development has lawfully implemented an earlier permission is a question of fact and degree, assessed by considering the development as a whole. The inspector must determine that issue clearly and give intelligible reasons. An ambiguous decision letter fails the duty to give adequate reasons and must be quashed.

Elmbridge Borough Council appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision varying an enforcement notice concerning ten townhouses and associated basement works at Royal Thames House.

The development differed substantially from a 2008 permission for nine units. The inspector rejected the ground (b) appeal but allowed ground (f) in part, replacing demolition requirements with a requirement that the operations comply with the 2008 permission. The Council argued that the permission had not been lawfully implemented and had lapsed, and that the inspector lacked power to grant such relief without a ground (a) appeal or deemed planning application. The central issues were the status of the 2008 permission and the scope of the inspector’s statutory powers.

1. Appeal allowed. The inspector’s decision was quashed and the matter was remitted to the Secretary of State for reconsideration.
2. Whether the 2008 permission had been lawfully implemented was a question of fact and degree. The relevant assessment required consideration of the work carried out as a whole, including the substantially enlarged basement and additional dwelling. The inspector’s decision letter contained both a conclusion that the permission had not been implemented and language suggesting that implementation had occurred. It therefore failed clearly to determine whether the permission remained extant. Applying South Bucks District Council v Porter (No 2) [2014] 1 WLR 1953, the reasons were inadequate.
3. On the assumption that the 2008 permission was not extant, the inspector lacked power on a ground (f) appeal to vary the enforcement notice so as to require compliance with that permission. The enforcement procedure is remedial, but the statutory power cannot be used to grant planning permission indirectly. The reasoning in SSETR v Wyatt Brothers (Oxford) Ltd [2001] EWCA Civ 1560, referred to with approval in SSCLG v Ioannou [2014] EWCA Civ 1432 and SSCLG v Ahmed [2014] EWCA Civ 566, governed the issue.
4. SSCLG v Ahmed explained that, where a ground (a) appeal and the requisite fee exist, permission may in principle be granted for a part of the development as built. That route was unavailable here. The result might have differed if an extant permission, a ground (a) appeal or an effective deemed application had existed.
5. The court did not determine a further ground concerning whether the varied notice adequately regulated the required works. The inspector’s concern that total demolition was disproportionate was not itself challenged.

• Inspector: Allowed the ground (f) appeal in part, varied the enforcement notice to require compliance with the 2008 planning permission, and extended the compliance period.
• High Court (Administrative Court): Permission to appeal was granted by Cranston J. The appeal was allowed, the inspector’s decision was quashed, and the matter was remitted to the Secretary of State.