The decision of the London Borough of Greenwich to take enforcement action against Comer Homes Group’s Mast Quay Phase II development recently, has attracted nationwide attention. The enforcement action is seeking, ultimately, the demolition of the two residential towers comprising 204 residential apartments, in two blocks and threatening to render homeless all the occupiers. If that does not grab the attention of the development industry, then what will? It is important to note that this is not the first time a local planning authority has taken such action, here we look at some of the issues and decisions in this area of enforcement.
With the Mast Quay Phase II development, planning permission was granted on 29 March 2012 for mixed-use development comprising 218 residential units and 738 square metres commercial floor space with associated car parking and landscaping and podium deck (Phase 2).
Image taken from London Borough of Greenwich website
Approved plans left and existing scheme as built right.
What appears to have been built is essentially 204 residential units, less than approved commercial units in Block D and none in Block E, a ground surface car park as opposed to basement car parking, play space areas that are contrary to the approved plans while communal roof terraces have not been provided. On its home page, the Council has issued a statement which sets out why the Council has taken the view that the development as built is contrary to the development that was granted permission in 2012, and is therefore unlawful because it is so substantially different to the scheme that was originally permitted. The Council has set out that there are at least 26 main deviations to the original planning permission which include:
- visible design changes to the external appearance of the towers
- visible changes to the materials and windows
- increasing the approved size of the footprint of both towers
- not providing the roof gardens for residents and the public, children’s play areas, green roofs or landscaped gardens
- lower quality residential accommodation
- non ‘accessible’ apartments that have steps to the balconies so that wheelchair users cannot use their outdoor space
- provision of a residents’ gym in place of the approved commercial floorspace
- a reduction of the amount of commercial floorspace for offices, shops and cafes at ground-level
- failure to provide enough underground car parking so that car parking dominates at ground level replacing what should have been a landscaped garden area with trees and plants and less car parking overall that could place pressure on street parking
- a lack of disabled parking bays
- shared residential/commercial basement access that could lead to conflicts
- a poorer quality footbridge to Woolwich Church Street.[i]
Collectively these do appear to be substantial departures from the approved permission. The statement released by the Council goes on to say that the Council believes that the only reasonable and proportionate way to rectify the planning harm created by the finished Mast Quay Phase II development to the local area and the tenants living there, is the complete demolition and the restoration of the land to its former condition.
The enforcement action that the Council has embarked upon is significant whichever way you look at it; however one issue that will have to be tackled by all concerned is whether the Council’s decision to seek the total demolition of the buildings with the resultant loss of homes for all those who are living in the dwellings a step too far, are the requirements of the enforcement notice excessive, could and should the Council sought changes to the scheme to revert back to the permission that was granted?
Statutory Powers for Enforcement Action
Section 172(1) of the Town and Country Planning Act 1990 (“the 1990 Act”) provides that a local planning authority can issue an enforcement notice where it considers that there has been a breach of planning control and it is expedient to issue the notice. An appeal against the enforcement notice can be brought on any of the seven grounds set out in Section 174(2) of the 1990 Act.
Looking specifically at Section 174(2)(a) of the Town and Country Planning Act 1990, this states;
(2) An appeal may be brought on any of the following grounds:
a) That, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged
b) that the matters alleged in the notice do not constitute a breach of planning control
c) that the breach of planning control alleged in the notice has not taken place;
d) in the case of a notice to which section 172 (4) applies, that the period of four years from the date of the breach of planning control to which the notice relates had elapsed at the date when the notice was issued
e) in the case of a notice not falling within paragraph (d), that the breach of planning control alleged by the notice occurred before the beginning of 1964
f) that copies of the enforcement notice were not served as required by section 172(6)
g) that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control or to achieve a purpose specified in section 173(4)
h) that the period specified in the notice as the period within which any step is to be taken falls short of what should reasonably be allowed
Enforcement notices generally tend to be issued as a last resort and a detailed report is prepared by the planning officer as to why the notice should be issued and what reasonable steps should be set out seeking to address the alleged breach of planning control.
In a decision by the Planning Inspectorate earlier this year (Appeal Ref: APP/C5690/C/22/3290410), the Inspector held that a development of 8 dwellings be removed in their entirety and all materials, debris, waste and equipment to also be removed. The decision is all the more remarkable as the Enforcement Notice that was issued had an option to implement a previously approved scheme in accordance with plans that were approved but the Inspector varied the notice to remove this option.
The facts of the case were that planning permission was originally granted in 2009, renewed in 2012, for the demolition of existing garages and their replacement with a two-storey flat roof building providing 8 units to be used for storage purposes. The appellant who acquired the site midway through construction in 2018 altered the building and built out eight dwellings. The relevant minimum space standard in the London Plan D6 is 58 square metres, whereas each of the dwellings had a floor area of 50 square metres and the Inspector found the shortfall to be significant and this coupled with the lack of storage space resulted in a poor standard of accommodation. The Inspector also found that privacy levels for residents at a nearby building were reduced by the development. The appellant also put forward a revised scheme; which was to convert four of the dwellings into offices, with roof and first floor front elevations also being rebuilt to add rooflights and angled front elevation profile with smaller bedroom windows facing the nearby building, however, the Inspector concluded:
- Whilst some of the changes may have gone some way in addressing the issues with the development, the power available to the Inspector under a ground (a) appeal was limited to the development comprising the breach of planning control; and
- The revisions would result in a change of use from residential to office use, which was not alleged in the enforcement notice
The Inspector states in his decision letter, “However, my power to grant planning permission under the ground (a) appeal and the deemed application for planning permission only extends to development which is part of the matters comprising the breach of planning control.”[1] He held that he had no power to grant permission under the Ground (a) appeal.
It has been established in several cases, including the Court of Appeal in Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202, in which Sullivan LJ observed that where there was an “obvious alternative which would overcome the planning difficulties at less cost and disruption then the inspector was under a duty to consider it.” This was approved by the Court of Appeal in Ahmed v Secretary of State for Communities and Local Government {2014} EWCA Civ 566.
Sullivan LJ went on in his judgement in Moore to make the point that power to grant planning permission in respect of alternative proposals is not unfettered.
“Sections 174(a) and 177(1)(a) of the 1990 Act require a comparison between “the matters stated in the enforcement notice as constituting a breach of planning control” and the alternative scheme under consideration…accordingly for each proposed alternative development:
17.1 The inspector first had to exercise his planning judgment to determine whether planning permission for the proposed alternative development would be in relation to the whole or part of the sunroom that had been erected in breach of planning control.
17.2 If the answer to such question was affirmative, the inspector would then have to exercise his further planning judgment to consider whether, after having regard to the applicable development plan and all other material considerations, permission should be granted for the proposed alternative development.”
This was confirmed in the case of Bhandal v Secretary of State for Housing Communities and Local Government [2020] EWHC 2724 (admin) 2019. Therefore, considering alternative proposals that are not cited in the enforcement notice is a possibility and perhaps one that should not have been disregarded by the Inspector. It is also common for an application to be submitted for an existing development, whilst the enforcement appeal proceeds, and if such an application is refused, then for both appeals to be co-joined and heard collectively. Ultimately this approach ensures time is saved and all the issues pertaining to the alleged breaches and the alternative development proposals are dealt with.
Ground (f) appeal was considered in the case of Miaris v Secretary of State for Communities and Local Government [2016] EWCA Civ 75 where the Court of Appeal upheld the inspector’s and the Planning Court decisions, where a ground (f) appeal is made, that the steps required in the enforcement notice are excessive, then this could not be entertained without an appeal also being made under ground (a) that permission should be granted for the breach of development control. The reasoning for this is that if the issues concern consideration of the planning merits of why certain steps should or should not be taken, then these cannot be considered underground (f) appeal only as ground (f) is not a power to grant planning permission. That can only be considered when a ground (a) appeal is also lodged.
The Inspector (in Appeal Ref: APP/C5690/C/22/3290410) also considered the appeal under Ground (g) that 6 months was too short to comply with the notice and the period for compliance should be increased to 18 months to allow time for the current occupiers to find alternative accommodation before remedial work would be carried out. The Inspector took into account the Articles 1 and 8 rights as there would have been interference with the use of private property but concluded that the Council had considered this and arrived at an appropriate balance of 6 months which would allow the occupiers to seek alternative accommodation and then action to be taken to comply with the terms of the notice.
In the case of R (on the application of Devonhurst Investments Ltd) v Luton Borough Council [2023] EWHC 978 (Admin), the local authority had issued an enforcement notice in relation to a residential building. The building use to be an office block located in an active industrial estate and the developer had applied for prior approval to change the use from offices to residential use. Whilst the Council had resolved that prior approval was not required, the developer demolished the building and rebuilt it with an extension with 109 residential units. In 2021, the developer applied for planning permission for additional residential development and community centre and Council then proceeded to take enforcement action against the residential use on the basis that the use for residential purposes was contrary to policy and provided substandard living standards for the occupiers of the residential units. The matter was heard by the Hon. Mrs Justice Steyne DBE, who considered the issues to be:
(a) Whether the decision by the Council had been taken without any, or any, proper regard to:
- the Council’s Public Sector Equality Duty under Section 149 of the Equality Act 2010;
- the best interest of children residing on the site, and/or
- Article 8 ECHR rights of the occupants and
(b)Whether the decision was taken without any, or any proper regard, to the statutory test of expediency pursuant to section 172(1)(b) of the TCPA.
The judgement was quite clear that the local authority had considered the notice’s impacts on the needs of those with protected characteristics under the S149 of the EA, that a higher level of scrutiny was not required then report for planning committee, (R. (on the application of Hayes) v Wychavon DC [2014] EWHC 1987 (Admin), [2019] P.T.S.R. 1163, [2014] 6 WLUK 707) and that the Council had considered the proposed notice’s impact on the needs of those with protected characteristics. It had concluded that the flats were likely used as temporary accommodation, and that the occupiers included families and low-income occupants. It had not been required to individually identify the protected characteristics of the occupiers. Its approach had been rational and lawful. The developer did not have standing to bring an ECHR Article 8 challenge on behalf of the occupiers, and in any event, there had been no Article 8 breach.
The caselaw establishes the tests expected to be carried out by the local planning authority in considering enforcement action where these factors come into play, and Greenwich would have had to carry out a similar exercise.
For all those following the events of the case, there will be a number of factors to consider including:
- Whether the original permission was implemented for the purposes of S56 of the 1990 Act or whether pre-commencement conditions were discharged
- Consideration and due weight to the Public Sector Equality Duty under Section 149 of the Equality Act 2010 and Article 8 of the ECHR
- Treatment of the revisions made to the development and the manner in which to pursue those amendments
These issues are not novel to the Greenwich scenario and no doubt a lot of consideration will have to have been given to all these issues in deciding that enforcement was expedient. It is likely that an appeal may follow and a trawl through the decided case law will be required, as difficult as it is.
[1] Paragraph 26 Appeal Decision APP/C5690/C/22/3290410
2.https://uk.westlaw.com/Document/I63ECD4A1788E11E1B14BBED3FEB720E9/View/FullText.htmloriginationContext=document&transitionType=DocumentItem&ppcid=3e1caca591b64673b9e1b1a2c3367e7a&contextData=(sc.DocLink)&comp=wluk
[i] London Borough of Greenwich website
