Susan Paton & Anor v Secretary of State for Levelling Up, Housing and Communities & Anor

For an appeal against an enforcement notice under ground (b) of section 174(2) of the Town and Country Planning Act 1990, the question is whether the alleged breach occurred at all, subject to the statutory enforcement time limits. The breach need not still be continuing when the notice is issued. This follows from the past-tense wording of ground (b), the power to issue notices where there has been a breach, the contrasting wording of ground (d), and the remedial purpose of the enforcement regime. A notice may therefore require restoration or measures preventing recurrence of a completed breach.

The applicants sought permission to appeal under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision dismissing their appeals under grounds (b), (f) and (g) against an enforcement notice issued by Maldon District Council.

The notice alleged the unauthorised erection of a C3 residential dwelling house, although the building had not been occupied and kitchen facilities and internal walls had been removed. The sole issue was whether ground (b), which applies where the matters stated in the notice have not occurred, required the alleged breach to be continuing when the notice was issued.

1. Permission refused. The applicants’ proposed appeal was unarguable.
2. Ground (b) of section 174(2) of the Town and Country Planning Act 1990 is expressed in the past tense. It requires an appellant to establish that the relevant breach did not occur at all, subject to the time limits in section 171B. It does not require proof that the breach was continuing when the enforcement notice was issued.
3. This construction is consistent with section 172(1)(a), which permits a local planning authority to issue an enforcement notice where it appears that there has been a breach of planning control and enforcement is expedient. That power does not depend on the breach being ongoing. It would be inconsistent for a notice lawfully issued because a breach had occurred to become appealable under ground (b) merely because the breach had ceased.
4. Ground (c) likewise addresses matters which occurred but did not constitute a breach. Ground (d), by contrast, expressly identifies the date of issue of the notice as the relevant time. The different wording supports a different meaning.
5. The time-limit provisions in section 171B reinforce that conclusion. For operational development, the ten-year period runs from substantial completion; for a material change of use, it runs from the date of the breach. The statutory scheme focuses on whether a breach took place within the permitted enforcement period.
6. The enforcement regime is remedial. Under sections 173(3) and 173(4), an enforcement notice may require steps to remedy a breach, including restoration of the land, or activities to cease. Requiring a breach to be continuing would frustrate that purpose and permit a person to stop and resume unlawful conduct to avoid effective enforcement.
7. The Inspector’s decisions in Nutley Dean Business Park and Abbey Glen did not support the applicants’ construction. Nutley Dean turned on mischaracterisation of the alleged change of use. Abbey Glen turned on the wording of the particular notice, which alleged a current use rather than a historical use capable of recurring.

• Inspector’s decision: On 9 May 2024, an Inspector dismissed the applicants’ appeals under grounds (b), (f) and (g) of section 174(2) of the Town and Country Planning Act 1990 and upheld the enforcement notice.
• High Court (Planning Court): Permission to appeal under section 289 was refused.