Kpogho v London Borough of Brent

A local planning authority’s discretion to extend the compliance period in an enforcement notice is subject to ordinary public law principles. A claimant must show that the authority was legally obliged to consider a matter, or that the matter was so obviously material that it was irrational to ignore it. The weight given to relevant considerations is for the authority, not the court, provided the decision remains lawful and rational.

It is not irrational to refuse an extension merely because a retrospective planning appeal remains possible. The authority may consider that the enforcement notice was not appealed and that retrospective applications were refused. The statutory scheme is intended to prevent delay and repeated opportunities to litigate the planning merits.

The claimant challenged the defendant local planning authority’s refusal to extend the compliance period in an enforcement notice requiring demolition of unauthorised extensions and alterations to his dwelling.

He had not appealed the enforcement notice. Instead, he had made two retrospective planning applications, both refused, and sought an extension to enable an appeal against the second refusal. Permission to apply for judicial review was granted on two grounds: failure to consider the relevance of the authority’s decision not to use its power under section 70C of the Town and Country Planning Act 1990, and irrationality.

The central issues were whether the authority had been required to consider its non-use of section 70C and whether refusal of the extension was irrational.

1. Claim dismissed. The refusal to extend the enforcement notice compliance period was lawful.
2. The statutory scheme provided powers to decline to determine retrospective applications, vary or extend enforcement notices, and appeal enforcement notices and planning refusals. The authorities showed a legislative purpose of reducing delay and preventing an applicant from having more than one determination of the underlying planning merits. The present challenge concerned the exercise of the power under section 173A, not the authority’s exercise of section 70C.
3. There was no express statutory requirement to take the authority’s non-use of section 70C into account. Under the principles stated in R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire Council [2020] PTSR 221 and R (ClientEarth) v Secretary of State for Business, Energy & Industrial Strategy [2020] EWHC 1303 (Admin), a matter must be expressly or impliedly required by the legislation, or so obviously material that it would be irrational to ignore it. The evidence established that the council had in fact considered its decision not to use section 70C for either application.
4. The weight given to relevant considerations was a matter of planning judgment. The court was concerned with legality, not the merits of the decision, consistently with Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759.
5. The irrationality challenge failed. The council was entitled to consider the absence of an appeal against the enforcement notice, the refusal of both retrospective applications, the environmental harm and public interest in enforcement. The later planning inspector’s decision did not make the earlier refusal irrational. Requiring an extension in these circumstances would risk frustrating the statutory aim of reducing delay and preventing repeated opportunities to pursue the planning merits.
6. Attempts to revive grounds previously refused, and a new legitimate-expectation point, were refused on overriding-objective and proportionality grounds.

Permission to apply for judicial review was refused on the papers by Swift J. Following an oral hearing, Upper Tribunal Judge Grubb, sitting as a High Court judge, granted permission by order dated 19 November 2019 on two grounds. The claim was then dismissed by the Administrative Court.