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

Under section 180 of the Town and Country Planning Act 1990, a later planning permission cancels an enforcement notice only to the extent that the notice is inconsistent with the permission. The correct question is whether, and to what extent, elements of the enforced development are common to the development subsequently permitted. An enforcement notice may therefore remain effective against unapproved parts of a building, even where other parts are authorised retrospectively. The operation of section 180 does not depend on implementation of the later permission. In a certificate of lawful development case, the applicant bears the burden of proving substantial completion on the balance of probabilities. A decision-maker may rely on a clear earlier finding that the works were not substantially complete, provided the reasoning is clear and adequate.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision dismissing her appeal against Harrow Council’s refusal to issue a certificate of lawful development under section 191. The application concerned an unauthorised extension to a bungalow which had been subject to an enforcement notice requiring demolition. Several later planning permissions authorised a modified extension, but they were not implemented.

The Inspector concluded that the extension had not been substantially completed for the requisite four-year period and that section 180 did not invalidate the enforcement notice. The central issues were whether the Inspector had applied the correct approach to section 180 and whether his assessment of substantial completion was legally irrational or inadequately reasoned.

1. The claim was dismissed. The claimant had to succeed on both grounds. If the Inspector’s finding on substantial completion stood, the certificate could not be issued because the operations remained subject to enforcement action and contravened the enforcement notice.
2. Section 180 does not operate on an all-or-nothing basis. Its effect depends on the extent of the inconsistency between the enforcement notice and the later permission. The relevant inquiry is whether there are elements of the development common to both instruments. The notice ceases to have effect in relation to fabric approved by the later permission, but remains effective against fabric not approved.
3. The later permission need not be implemented before section 180 is engaged. Nor is the statutory effect avoided because the permission authorises only part of the works or forms part of a larger development. The question of congruence is one of fact and degree.
4. Applying that approach, the later permissions authorised retention of parts of the extension but not the pitched roof or the projection beyond the building line. Demolition of those unapproved parts was not inconsistent with the permissions. The enforcement notice therefore remained effective to that extent. The claimant’s proposed construction would improperly make a notice ineffective against all of a development merely because a later permission authorised retention of some of it.
5. The Inspector was entitled to rely on the earlier enforcement appeal decision, which had found that the extension was still under construction in 2006 and nearing completion in September 2007. He gave clear reasons for rejecting the claimant’s conflicting evidence and was not required to give reasons for his reasons or to undertake a further Sage analysis after adopting the earlier finding.

The Inspector had erred in his treatment of section 180, but that error could not affect the outcome. The challenge to his conclusion on substantial completion failed, and the claim was dismissed.

The judgment itself records that an earlier Inspector’s decision was challenged in the High Court and dismissed on 16 April 2010 in Nestorova-Goremsandu v Secretary of State for Communities & Local Government & Anor [2010] EWHC 793 (Admin). The present proceedings challenged a later Inspector’s decision dated 28 January 2015. The claim was dismissed.