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

On an enforcement-notice appeal confined to ground (f), and with no ground (a) appeal, an inspector cannot determine the general planning merits of an alternative proposal or use ground (f) as a route to planning permission. The second limb of ground (f) has a limited role. It may be entertained without ground (a) where the relevant requirement is solely directed to remedying injury to amenity.

The question is not determined solely by the statutory purpose selected under section 173(4) of the Town and Country Planning Act 1990. It depends on the planning objections that compliance with the requirement would meet. “Injury to amenity” does not include every planning objection. Where objections extend to health, well-being, the environment or other planning considerations, they must be assessed, if at all, on a ground (a) appeal.

The council issued an enforcement notice alleging an unauthorised material change of use of premises in Bath from a restaurant to a mixed restaurant, drinking-establishment and nightclub use. It required the drinking-establishment and nightclub uses to cease and prohibited disc jockeys from performing.

The appellant challenged the notice only on ground (f) under section 174(2) of the Town and Country Planning Act 1990. He accepted the requirement to stop the nightclub use but sought a variation that would permit a controlled drinking use. The inspector declined to consider the planning merits because there was no ground (a) appeal or deemed planning application, and dismissed the appeal.

A deputy judge dismissed the appellant’s statutory appeal in the Planning Court: [2015] EWHC 1564 (Admin). The central question was the scope of a ground (f) appeal where the requirements were said to exceed what was necessary to remedy injury to amenity.

1. Appeal dismissed. Lindblom LJ, with whom Tomlinson and Longmore LJJ agreed, held that the inspector had correctly understood the limited scope of an appeal brought only on ground (f).

2. Ground (f) is not a means of obtaining approval for an alternative development or use. In the absence of a ground (a) appeal and the resulting deemed application, an inspector has no power to grant planning permission or to assess the general planning merits of a proposed lesser remedy. The powers in section 176 do not create a discretion to grant or refuse planning permission in a ground (f)-only appeal.

3. The court followed Secretary of State for the Environment, Transport and the Regions v Wyatt Brothers (Oxford) Ltd [2002] P.L.C.R. 18. It also applied the limits identified in Secretary of State for Communities and Local Government v Ioannou [2014] EWCA Civ 1432. There is no free-standing “obvious alternative” test that overrides the statutory restrictions on planning permission and deemed permission.

4. A requirement may serve both purposes in section 173(4) of the Town and Country Planning Act 1990: remedying the breach and remedying injury to amenity. The availability of a ground (f) challenge does not turn simply on the paragraph of section 173(4) relied on. It turns on whether the requirement addresses planning objections beyond injury to amenity.

5. Here, the notice addressed not only amenity but also residents’ health and well-being, the environment, pedestrian movements, and development-plan considerations. The appellant’s proposed limit on non-dining drinkers therefore raised planning merits that could not be determined under ground (f) alone. The inspector was entitled, and required, to decline to consider them.

• Court of Appeal (Civil Division) Dismissed the appeal and upheld the conclusion that the inspector could not determine the planning merits on a ground (f)-only appeal: [2016] EWCA Civ 75.
• High Court, Administrative Court, Planning Court The deputy judge dismissed the appellant’s appeal under section 289 of the Town and Country Planning Act 1990: [2015] EWHC 1564 (Admin).
• Planning Inspector Dismissed the section 174 appeal on ground (f) and upheld the enforcement notice.