Bhandal & Ors v Secretary of State for Housing, Communities & Local Government & Anor

On an enforcement appeal, the power to grant planning permission for an alternative scheme depends on whether the scheme relates to the whole or part of the matters constituting the breach. The need for new work is an important planning consideration, but it is not automatically determinative. The inspector must exercise planning judgment on that statutory question and, if the scheme falls within the statutory power, on its planning merits. An alternative outside that power may be pursued by a freestanding planning application, with time extended under ground (g) where appropriate. The power to vary an enforcement notice is a slip rule and cannot be used to authorise separate alternative development.

The appellants owned a restaurant with a sunroom built materially differently from the planning permission. An enforcement notice required removal of the unauthorised development. On appeal, an inspector rejected several alternative schemes under grounds (a) and (f), but extended the compliance period under ground (g).

The appellants challenged the inspector’s conclusions under section 289 of the Town and Country Planning Act 1990. The principal issue was whether replacement roofs and related works meant that the proposed alternatives necessarily fell outside the power to grant permission under section 177(1)(a). Further issues concerned over-enforcement and whether the notice could be varied to require folding doors to close the opening left by removal.

1. Ground 1 allowed. The inspector erred in law by treating the requirement for any new work as determinative of whether options B and C related to the whole or part of the matters enforced against. The correct question under sections 174(2)(a) and 177(1)(a) was whether the alternative development could properly be described as relating to the whole or part of the erected sunroom. The extent of new work was an important factor in that planning judgment, but not an automatic answer.
2. The inspector had to decide first whether each alternative fell within the statutory power. If so, he then had to consider its planning merits having regard to the development plan and other material considerations. The approach was consistent with Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566, where the question was treated as one of planning judgment.
3. The statutory scheme allowed only one opportunity to have the planning merits of an alternative scheme considered. A scheme within section 177(1)(a) should be pursued in the enforcement appeal. A scheme outside that provision could be pursued by a fresh application, and the inspector could extend time under ground (g) to allow its merits to be explored. Sections 70C and 177(1)(a) were to be read consistently with that remedial scheme.
4. Ground 2 dismissed. The challenge under ground (f) added nothing once the matter was remitted for proper consideration under ground (a). The inspector’s reasoning was arguably circular, but no separate relief was required.
5. Ground 3 dismissed. The inspector was entitled to conclude that folding doors did not form part of the development enforced against and to allow time for the planning authority to consider that proposal. Section 176(1)(b) was a generously expressed slip rule. It could not be used to obtain permission for separate alternative development, consistently with Secretary of State for the Environment, Transport & the Regions v Wyatt Brothers (Oxford) Ltd [2001] EWCA Civ 1560.
6. The appeal was allowed on ground 1 and remitted for fresh consideration of options B and C under ground (a). No particular outcome was required on reconsideration.

• Inspector’s decision: Mr J Whitfield dismissed most of the enforcement appeal, rejected options B–D under grounds (a) and (f), and extended the compliance period under ground (g).
• High Court (Administrative Court): The appeal under section 289 was allowed on ground 1 and remitted for fresh consideration of options B and C under ground (a). Grounds 2 and 3 were dismissed.