Miaris v Secretary of State for Communities And Local Government & Anor (Rev 1)

On an appeal against an enforcement notice under ground (f), the merits of an alternative step cannot be considered where there is no ground (a) appeal and the step addresses planning objections extending beyond injury to amenity. This is because ground (f) cannot be used to obtain, directly or indirectly, planning permission which can only be granted under ground (a).

The position differs where the step is directed solely to remedying injury to amenity caused by the breach. In that case its proportionality may be considered under ground (f), even without a ground (a) appeal. The question depends on the planning objections the step seeks to remedy, not on whether the authority relied on section 173(4)(a), section 173(4)(b), or both.

The appellant brought an appeal under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision upholding an enforcement notice concerning premises lawfully used as a restaurant.

The notice required the cessation of use as a drinking establishment and nightclub and prohibited DJs. The appellant appealed only under ground (f), contending that stopping the drinking-establishment use and prohibiting DJs exceeded what was necessary to remedy injury to amenity. He had not appealed under ground (a) seeking planning permission for any part of the alleged breach.

The central issue was whether the Secretary of State could consider the proposed lesser restriction on its planning merits under ground (f).

1. The appeal was dismissed. The Inspector had not erred in law by refusing to consider on their merits the appellant’s proposed limitation on non-dining drinkers.
2. Enforcement procedures under the Town and Country Planning Act 1990 are remedial rather than punitive. Alternative requirements may require consideration, but their availability depends on the breach alleged, the purpose of the specified step, the grounds of appeal and the alternative proposed.
3. Where there is no ground (a) appeal, a ground (f) challenge cannot be entertained on its merits if the relevant step addresses planning objections which are not limited to injury to amenity. Otherwise the appeal could indirectly secure planning permission without consideration of the remaining planning objections and without the statutory ground (a) procedure and fee.
4. A ground (f) appeal may nevertheless be considered on its merits where the step is directed solely to remedying injury to amenity caused by the breach. The issue is determined by the nature of the planning objection being remedied, rather than by the paragraph of section 173(4) relied upon by the authority.
5. The power to vary an enforcement notice under section 176 is a limited power and cannot be used to achieve what requires a ground (a) appeal. It does not confer a discretion to vary or quash a notice while bypassing the statutory planning-permission scheme.
6. The reasons for the notice showed concerns not merely about amenity but also about the health and well-being of nearby residents. The drinking-establishment requirement therefore addressed more than injury to amenity. The Inspector was entitled to decline to assess the proposed customer limit on its planning merits. The finding that DJs were associated with nightclub use was also a permissible planning judgment.

This was a statutory appeal under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision dated 7 March 2014. The appeal was dismissed.