Hussain v Secretary of State for Communities and Local Government

A development may be commenced for the purposes of Town and Country Planning Act 1990, section 56, so as to satisfy a commencement condition, even if later works depart from the permission. Such later departures may create an enforcement issue, but they do not retrospectively undo the commencement.

A decision may nevertheless stand where an impugned decision-maker relied on both a defective ground and an independently sufficient lawful ground. Relief may be refused where the outcome would have been highly likely to remain the same. Reasons are adequate if they enable the affected party to understand why the decision was reached on the principal issue.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of an inspector’s dismissal of his appeal under section 195 against refusal of a certificate of lawfulness under section 192.

The dispute concerned a building at Bentley Parade. Earlier permissions had been granted, and works had begun within the relevant five-year period, but the completed building materially departed from the permissions. An enforcement notice requiring demolition remained in force.

The central issues were whether the later inspector was entitled to conclude that the permission was no longer capable of implementation and whether his reasons were adequate.

1. The application was dismissed. The inspector was entitled to conclude that the refusal of the certificate of lawfulness was well founded under section 195(3) of the Town and Country Planning Act 1990.
2. It was accepted that development can be commenced for section 56 purposes and satisfy a commencement deadline, while later deviations from the permitted works give rise to an enforcement issue. A later deviation does not retrospectively alter the fact of commencement. The inspector’s reasoning on the expiry of the five-year period may therefore have been legally erroneous.
3. That error was immaterial. The completed building was substantially different from the permitted development, and the enforcement notice requiring demolition remained in force. The proposed works would therefore contravene the enforcement notice and could not lawfully be carried out. That provided an independent and sufficient basis for refusing the certificate.
4. The inspector’s reasons were adequate. Read fairly and flexibly, they identified the issue as whether the 2002 permission remained capable of implementation and explained that the building constructed was wholly different from that authorised.
5. In any event, relief would have been refused under the Simplex test. The outcome would have been highly likely to be the same on reconsideration, and remission would risk encouraging continued unlawful conduct in breach of the enforcement notice.
6. Permission to appeal was refused. Costs were summarily assessed at £7,774.70.

• Secretary of State’s inspector: Inspector Ghafoor dismissed the claimant’s enforcement appeal and upheld the enforcement notice on 14 May 2015. The earlier decision had been remitted following a consent order, while the planning merits decision remained unchallenged.
• Secretary of State’s inspector: Inspector Hand dismissed the appeal under section 195 on 11 July 2016.
• High Court (Administrative Court): The statutory review was dismissed. Permission to appeal was refused.