Pathfield Estates Limited v London Borough of Haringey

A local planning authority’s acceptance that works or a use provide satisfactory compliance with an enforcement notice does not necessarily waive or relax a requirement under Town and Country Planning Act 1990, section 173A.

Whether waiver occurred is a question of mixed fact and law. The court may consider all relevant evidence, including internal records, officers’ reasoning, correspondence and subsequent evidence. Compliance does not discharge an enforcement notice, and the absence of formal notice of variation is an evidential factor. A representation that no enforcement action will be taken is distinct from formal variation of the notice.

Haringey issued an enforcement notice requiring Pathfield Estates Limited to cease using premises as five flats, remove fixtures and materials, and restore the property to use as two flats. Following discussions in 2008, the authority accepted conversion to a single dwelling-house as satisfactory compliance and sent closure letters.

Pathfield was later prosecuted for breach after the property was used as six flats. The Magistrates’ Court convicted Pathfield and the Crown Court dismissed its appeal. On a case stated appeal, the issue was whether the Crown Court had sufficient evidence to conclude that the requirement to restore the property to two flats had not been waived or relaxed under section 173A.

1. Appeal dismissed. The Crown Court was entitled to conclude that the requirement to restore the property to two flats had not been waived or relaxed.
2. Whether a requirement in an enforcement notice has been waived under section 173A is a question of mixed fact and law. It must be determined in the statutory context, rather than treated as a question of pure fact.
3. The Crown Court was entitled to consider all relevant evidence. This included internal planning records, the responsible officer’s contemporaneous reasoning, her witness statement, correspondence with interested parties, and supporting evidence from a later planning enforcement officer. Evidence unknown to the landowner at the time was not thereby excluded.
4. The authority’s acceptance that use as a single dwelling-house was satisfactory compliance did not necessarily amount to deletion or waiver of the requirement to restore the property to two flats. It could instead represent an undertaking or decision not to take enforcement action while the property was used as a single dwelling-house.
5. Wilsdon v Maldon DC demonstrated the distinction between discussing how an enforcement notice will be enforced and formally varying its terms. The absence of a notice under section 173A(3) was evidentially significant and supported the conclusion that no variation had occurred.
6. Sections 172A, 173A and 181 provided a coherent statutory context: compliance does not discharge an enforcement notice; an authority may give an assurance against prosecution; and it may waive or relax a requirement, but cannot replace it with a more onerous requirement. The answer to the case-stated question was yes.

• Crown Court: dismissed Pathfield’s appeal against conviction in a ruling dated 15 June 2022.
• High Court (King’s Bench Division, Divisional Court): on a case stated appeal, answered the question in the affirmative and dismissed the appeal.