Planning Law solicitors discuss granting of planning permission for alternative proposals in enforcement notice appeal

Planning Law solicitors, Michael Harman and Ellie Shemming of Holmes & Hills' specialist Planning and Development Team, discuss the recent High Court case of Bhandal.

In the recent High Court case of Bhandal & Ors v Secretary of State for Housing, Communities & Local Government & Anor [2020] EWHC 2724 (Admin) (“Bhandal”) it was held that on an appeal against an enforcement notice, a planning Inspector had erred in law by refusing to grant planning permission for alternative proposals on the basis that they involved new works.

Challenging an enforcement notice

Before we delve into the specifics of Bhandal, it is useful to first familiarise ourselves with the relevant statutory framework.

Under section 172 of the Town and Country Planning Act 1990 (“TCPA”), a Local Planning Authority (“LPA”) may issue an enforcement notice where it considers there has been a breach of planning control and it is expedient to issue the notice.

Should a person with an interest in the land wish to challenge the enforcement notice, they may bring an appeal to the Secretary of State on any of the seven grounds set out in s174(2) TCPA, namely:

• 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;

• that those matters have not occurred;

• that those matters (if they occurred) do not constitute a breach of planning control;

• that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

• that copies of the enforcement notice were not served as required by section 172;

• that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.

Under section 177(1)(a) TCPA, on the determination of an appeal under section 174 TCPA, the Secretary of State may “grant planning permission in respect of matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those mater, or in relation to the whole or any part of the land to which the notice relates”.

Bhandal – The Facts

Bromsgrove District Council (“BDC”) granted the claimants planning permission to demolish and replace the sunroom at the front of their restaurant. The replacement building was not, however, built in accordance with the planning permission.

The claimants sought planning permission to retain the sunroom as built, but such application was refused by BDC and by the Secretary of State on appeal. As a result, BDC issued the claimants with an enforcement notice which required the removal of the unauthorised development.

The claimants appealed to the Secretary of State against the enforcement notice arguing the grounds under sections 174(2)(a), (f) and (g) TCPA. In support of their appeal upon grounds (a) and (f), the claimants put forward four alternative development proposals – options A to D. The claimants argued that one of these proposals ought to be granted planning permission instead (under section 174(2)(a)), and that the steps required in the enforcement notice exceeded what was necessary to remedy the breach (under section 174(2)(f)).

The Inspector rejected the appeal. His interpretation of section 177(1)(a) was such that it did not extend to alternative developments that required any new works and subsequently options B-C were rejected because they involved putting in place a replacement roof.

The claimants further appealed against the Inspector’s decision to the High Court and in doing so, argued three grounds. The first was that the Inspector was wrong to conclude that he had no power to grant planning permission for alternative developments B and C. The second was that the alternative developments B and C, proposed solutions that were short of complete demolition and that the Inspector was wrong to reject the appeal on ground (f). Third, if all else failed, it was irrational to fail to at least grant permission for alternative development D.

The Judgement

In the High Court, Pepperall J accepted that whether planning permission for any proposed alternative development would be in relation to the whole or part of the matters comprising the breach of planning control is a question of planning judgement for the Inspector with which the court should be slow to interfere.

However, he was satisfied in this instance that the Inspector had erred in law by taking a very narrow view of his power to grant planning permission on the claimants’ appeal. 

Pepperall J acknowledged that there was “no need to take a strained interpretation of s177(1)(a)”. He stated that the essential question was not whether the proposed alternative development required some additional works, but rather whether it could properly be described as relating to the whole or part of the matters enforced against. He went on to state that the extent of new work required by an alternative development might well indicate that it does not relate to a part of the development as built and that the need for new work would be an important factor in the exercise of planning judgment. However, it was not right to say that the need for any new work at all was determinative of the matter.

Pepperall J stated that “since virtually any alternative scheme is likely to involve at least some element of new work, the Inspector's approach, if correct, would have the effect not just of significantly reducing the power to grant planning permission on an appeal against an enforcement notice but also significantly reducing the application of s.70C”.

Further he claimed that this “would not just emasculate the utility of the Secretary of State's power to grant permission where some alternative scheme would be acceptable, but it would add delay since the planning authority would then be required to consider a freestanding retrospective application.”

Pepperall J concluded that the Inspector erred in his approach to s177(1)(a) and allowed the matter to be sent back for fresh consideration of options B and C under ground (a).

Planning Law solicitor commentary

Bhandal considered the combined meaning of sections 177(1) (a) and 174(2)(a) TCPA and is significant in demonstrating the extent to which the Secretary of State can grant permission for alternative developments to remedy matters stated in an enforcement notice.

Whilst the judgment upholds a wider interpretation of the Secretary of State’s power to grant planning permission on alternative developments, confirming Inspectors are entitled to take the view that the extent of the new work required by alternative developments would be such that they do not properly fall within the statutory power to grant planning permission. It does confirm that Inspectors are not allowed to simply dismiss a ground (a) appeal on the mere fact any new work is required and that they do have the power to grant planning permission for alternative developments.

If you wish to challenge a planning enforcement notice or have any other planning queries, please get in touch with a member of our specialist planning law team.