CHRISTOPHER NEOPHYTOU v ENFIELD COUNCIL

A local planning authority’s decision whether to issue an enforcement notice is discretionary and reviewable on ordinary public law grounds, but the court must not substitute its planning judgment. A factual-error challenge requires an established, objectively verifiable fact, absence of responsibility for the error, and materiality to the decision. A genuinely disputed factual issue cannot be recast as an error of law. A breach of planning control and neighbours’ concerns do not by themselves require enforcement. The authority may consider remedial works, the likely outcome of an enforcement appeal and potential costs.

The claimants sought judicial review of Enfield Council’s decision not to take further enforcement action concerning alterations to a neighbouring property. The works involved changes to an existing raised terrace and landscaping and patio works in the garden.

The claimants alleged that the Council had failed to consider an extension of the terrace, miscalculated its increased height and misunderstood permitted development rights under the Town and Country Planning (General Permitted Development) (England) Order 2015. The central issue was whether the decision not to enforce was unlawful.

1. Claim dismissed. The decision whether to issue an enforcement notice under s 172 of the Town and Country Planning Act 1990 is discretionary. It may be quashed for ordinary public law error, including reliance on irrelevant matters, failure to consider relevant matters, irrationality, procedural error or material error of fact. Whether enforcement is expedient remains for the properly advised local planning authority.
2. An alleged factual error is reviewable only where there is a mistake concerning an existing fact or evidence availability; the fact or evidence was established, uncontentious and objectively verifiable; the claimant was not responsible for the mistake; and the mistake materially contributed to the reasoning. The claimants failed to establish that the alleged terrace dimensions were uncontentious facts.
3. The relevant comparison for the terrace was between the new works and the pre-existing terrace, which was too old to be enforced against. The court was not required to determine conclusively whether a breach had occurred, but whether the Council’s decision was unlawful.
4. The Council had erred in treating the GPDO as permitting a general raising of garden levels by up to 30 cm. That error did not require quashing. The Council had considered the evidence, neighbouring amenity, the likely outcome of an enforcement appeal and the prospect of an adverse costs order. Those reasons independently justified the decision not to enforce. The patios might also have been permitted development as raised platforms under Class E and paragraph E.1(h), taking account of the original ground level.
5. The claim failed on all three grounds and was dismissed.