Manchester City Council v The Secretary of State for Levelling Up, Housing and Communities & Anor.

For the purposes of section 174(2B) of the Town and Country Planning Act 1990, a planning application is related to an enforcement notice if granting the application would involve granting permission for all the matters specified in the notice as the breach. The application may also seek permission for additional development.

The statutory test does not require identical development, nor does it depend on whether different planning arguments, including a permitted-development fall-back, might be available on an enforcement appeal. The provision prevents a person from obtaining a second merits determination of the enforcement-notice matters.

The council issued an enforcement notice requiring removal of an unauthorised first-floor rear extension and rear roof dormer at a dwelling house. The owner had previously made, and the council had refused, a partly retrospective application which included those works and a proposed change of use.

The owner appealed against the notice on grounds (a) and (f) under section 174(2) of the Town and Country Planning Act 1990. The Planning Inspectorate accepted that ground (a) could proceed because the application concerned a materially different mixed-use scheme. The council appealed under section 289, contending that ground (a) was barred by section 174(2A) because the application was related within section 174(2B).

1. Appeal allowed. The Planning Inspectorate applied the wrong test in validating the ground (a) enforcement appeal.

2. Section 174(2B) required a direct comparison between the matters specified in the enforcement notice and what would be authorised if the planning application were granted. The earlier application included the erection of the first-floor extension and installation of the rear dormer. A grant of that application would therefore have granted permission for the very matters alleged in the notice as the breach. It was consequently a related application for section 174(2A).

3. The language of section 174(2B) does not require complete coincidence between the application development and the enforcement-notice matters. The reference to permission for the development which would involve granting permission for the specified matters allows the application to encompass more development than the notice.

4. The fact that the application also proposed a change of use did not alter that conclusion. The alleged breach concerned physical operations only, and the council’s planning objection concerned the effect of their physical presence on visual and residential amenity.

5. A permitted-development fall-back, and the possibility that it might be argued on an enforcement appeal, did not permit a different construction. Section 174(2A) prevents both an appeal against refusal and a ground (a) appeal where the prior application covered the enforcement-notice matters. Different arguments do not create a fresh opportunity for merits consideration. The owner could in any event have advanced the fall-back argument on an appeal against the refusal.

6. The availability of a ground (f) appeal did not justify departing from the statutory language. The inspector retained power under ground (f) to modify excessive compliance steps by reducing the extent of demolition required in relation to amenity.

This was a first-instance statutory appeal under section 289 of the Town and Country Planning Act 1990. Permission to bring the appeal was granted by HHJ Bird, sitting as a Judge of the High Court, on 16 September 2021.