In Langmead v Secretary of State for Housing Communities and Local Government [2018] EWHC 2202 (Admin), the High Court has recently emphasised the important statutory limitation upon an inspector’s ability to grant planning permission for a deemed application on appeal against an enforcement notice.
Legislation
The right to appeal against an enforcement notice issued by a local planning authority for a breach of planning control is provided by section 174 of the Town and Country Planning Act 1990 ("the 1990 Act"). As relevant to the present case, such section provides the right to appeal on the 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.
Section 177 then deals with the grant or modification of planning permission on appeals under this ground (a). So far as relevant it provides as follows:
(1) On the determination of an appeal under section 174, the Secretary of State may:
(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates;
(b) discharge any condition or limitation subject to which planning permission was granted;
(c) determine whether, on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which planning permission was granted was lawful and, if so, issue a certificate under section 191.
…
(2) In considering whether to grant planning permission under subsection (1), the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject matter of the enforcement notice, and to any other material considerations.
The facts
The case concerned a planning permission granted in July 2005 for the formation of a new agricultural hard standing access track and earth bund associated with the stationing of mobile homes for seasonal workers to the farm. Of relevance was conditions 4 and 5 on the permission which stated:
“4. At no time should any mobile homes or caravans be stationed on the permitted hard standing other than those required for occupation by seasonal workers on the farm and all such caravans shall be removed immediately at the end of the season.
5. Notwithstanding condition (4) above and notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking and re-enacting or amending that Order) at no time shall any mobile homes or caravans be stationed on the permitted hard standing except between the period 1 March to 31 October every year unless planning permission has been granted by the District Planning Authority.”
On 15th November 2016, the council issued an enforcement notice due to a breach of planning control. Significantly, the enforcement notice only specified a breach of condition 4. It did not specify, nor was issued for, a breach of condition 5. The reason provided on the notice was that “it appears to the Council that the condition [4] is not being complied with because caravans are stationed permanently on the permitted hardstanding and are occupied by persons who are not seasonal workers at River Farm”.
The owner appealed the enforcement notice on, amongst other grounds, a deemed planning application under ground (a). He submitted a landscape and visual impact assessment together with proposed measures to mitigate the adverse character effect during the winter presence of the caravans.
The inspector dismissed the appeal and refused the deemed planning application. On the relevance of the proposed mitigation measures to the application the inspector noted the following:
“The comparison with the removal of the caravans is not relevant given the terms of condition 5. I cannot take the proposed mitigation measures into account given the terms of this appeal"
“In reaching this conclusion I bear in mind that, even if I had allowed the ground (a) appeal and granted the deemed planning application, condition 5 of the 2005 permission, which states that 'at no time shall any mobile homes or caravans be stationed on the permitted hardstanding except between the period 1 March to 31 October every year', remains in force and therefore the caravans would have to be removed from the appeal site over the winter months in any event”.
The owner judicially reviewed the inspector’s decision, alleging she erred in failing to consider the mitigation measures when deciding to refuse the deemed planning application.
The decision
The High Court dismissed the judicial review. Mr Justice Lane found that the inspector had correctly understood and decided the deemed planning application within the limited scope of the enforcement notice, namely a breach of condition 4 only.
In particular, Mr Justice Lane noted the following:
“A local planning authority has discretion, conferred by Parliament, as to whether and if so how to enforce adherence to planning control. In the present case, the First Interested Party focused on the breach of condition 4. The scope of the Inspector's task under sections 174 and 177 was, therefore, confined to the issue of whether condition 4 should be lifted. Because condition 5 was not within the scope of the Enforcement Notice appeal, the Inspector had to bear in mind that condition 5 would, in any event, remain. Her powers in the Enforcement Notice appeal did not enable her to lift or vary condition 5. The caravans would, in any event, not be permitted to be stationed on the land (let alone occupied by those unconnected with the farm) during the months of November to February inclusive.
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the question for the Inspector was whether, in effect, planning permission should be granted for the caravans to be occupied by persons who were not "seasonal workers on the farm". Despite the fact she was concerned in the appeal only with condition 4, the Inspector could not ignore the existence of condition 5. On the contrary, its existence inevitably circumscribed the scope of the Enforcement Notice appeal”.
Lesson: This case highlights the importance to clearly understand the scope of the enforcement notice when considering an appeal under ground (a) in applying for deemed planning permission. In particular, such scope must be assessed against the remaining planning conditions which may not be the subject of the enforcement notice but are still material to the limitations upon which an inspector may grant planning permission for the specified breach in the enforcement notice.
