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

On an enforcement appeal, an inspector’s power to grant planning permission is confined to the whole or part of the matters stated in the enforcement notice as constituting the breach. The power does not extend to granting permission for a different development outside the notice. An inspector may consider a partial or modified solution where the relevant development is within that statutory scope, but must assess whether the parts are physically and functionally severable and acceptable in planning and amenity terms. Under ground (f), lesser steps may be considered where they are a realistic and obvious alternative which would overcome the identified planning harm. The inspector is not required to devise alternatives or provide a separate merits analysis for every scheme where the decision, read as a whole, gives clear and adequate reasons for rejecting them all.

Mr and Mrs Arnold appealed under section 289 of the Town and Country Planning Act 1990 against Dove J.’s dismissal of their challenge to an inspector’s decision on appeals against an enforcement notice.

The notice alleged the erection of a dwelling-house without planning permission in the Green Belt and the Surrey Hills Area of Outstanding Natural Beauty. The inspector dismissed the appeals on grounds (a), (b), (c), and (f), allowing only ground (g) to the extent of extending the compliance period, and upheld the notice as varied. The central issues were whether the inspector had misunderstood his power to consider alternative development under ground (a), and whether he had lawfully assessed the alternatives under grounds (a) and (f).

1. Appeal dismissed. The inspector correctly understood that sections 174(2)(a) and 177(1)(a) confined the deemed planning application to the matters stated in the enforcement notice, while permitting permission for the whole or any part of those matters. The power did not extend to permission for a different development outside the notice’s scope.
2. The inspector was entitled to consider whether partial permission could be granted. Physical and functional severability was a necessary prerequisite, because the enforcement notice had to make clear what works were required for compliance. The finding that the building was integrated and lacked a clear divide between acceptable and unacceptable parts was a finding of fact and degree open to the inspector. His additional conclusion that no part was acceptable in planning and amenity terms was an unassailable planning judgment.
3. Under ground (f), the inspector was entitled to conclude, having regard to Tapecrown, that lesser steps could not be substituted where the notice’s purpose was to remedy the breach. Even on the alternative assumption that lesser, less costly or disruptive steps could be considered, they had to be realistic, obvious and capable of overcoming the identified harm. The suggested schemes met none of those requirements, and there was no obvious lawful fallback.
4. The inspector was not required to analyse each alternative separately by weighing every planning objection and benefit. Read as a whole, the decision letter showed that he had considered all the schemes, their achievability, and their acceptability, and gave clear and adequate reasons for rejecting them. The approach was consistent with Tapecrown, Wyatt, Mata, Ahmed, Ioannou and Miaris.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld Dove J.’s decision reported at [2015] EWHC 1197 (Admin).
• Administrative Court, Planning Court: Dove J. dismissed the appellants’ section 289 appeal against the inspector’s decision on their section 174 enforcement appeals.
• Inspector’s decision: The appeals against the enforcement notice succeeded only on ground (g), resulting in a longer compliance period; the notice was otherwise upheld.