Appeal permission ok where development breaches condition and enforcement pending (Greenwood v MHCLG & Ors)

Mini-summary

Developer (Mr Seal (S)) obtained permission for new dwelling, which replaced existing floorspace in outbuildings. Permission contained condition requiring demolition of outbuildings. Dwelling completed, but outbuildings remained in breach of condition. S obtained non-material amendment (NMA) to improve vehicle manoeuvring space. Neighbours objected as sufficient space available once outbuildings demolished. S wrote to Council and neighbours promising demolition and compliance with condition. Application later made to refurbish outbuildings. Permission refused but granted on appeal. Statutory challenge by neighbours. Court held decision-maker should assess impacts of proposal (breach of condition) versus impact of original permission (compliance with condition). S’s conduct not a basis to refuse permission. Enforcement a matter for the Council. Case iterates that developer’s behavior is irrelevant to decision-maker’s determination. Grant or refusal of permission to be objectively assessed on the merits, although site history / enforcement context can be relevant.

What are the practical implications of this case?

The decision in helpful in understanding what the decision-maker should consider when determining an application for development that may simultaneously be susceptible to enforcement action. The judge stated:

“I agree with the Claimant’s submission that, in the circumstances of this application where Mr Seal was, in effect, seeking to vary a condition precedent to the planning permission which he was in the course of implementing, it was axiomatic that the decision-maker would consider the impacts of the proposed variation (including the breach of Condition 6), and assess them against the impacts of the existing permission (including compliance with Condition 6). That is the exercise which the Council carried out when it decided to refuse planning permission for the proposed development. In my view, that is also the exercise which the Inspector carried out on appeal, but which led him to the opposite conclusion.”

The judge whilst sympathetic to the fact that S had misled the claimant stated:

“I consider it would have been helpful if the Inspector had set out more fully the scope of this appeal, explaining the tests which he had to apply, and that Mr Seal’s conduct was not a basis upon which the Inspector could refuse the appeal … the Inspector … correctly states that enforcement is a matter for the Council and is not within the remit of the appeal.”

The case is a salutary reminder to local planning authorities (LPAs):

• of what can happen if they do not take enforcement action promptly. Condition 6 required that:

“No development shall take place on the site until all of the existing structure(s) shown to be demolished on the approved plan have been so demolished….”

Work commenced in October 2018, the construction of the dwelling commenced in April 2019, and was completed and occupied by the end of 2019. The NMA application was granted in February 2019. The application to refurbish the outbuildings was made in October 2019. The Council could have served or threatened to serve a breach of condition notice (BCN) (s.187A Town and Country Planning Act 1990 (TCPA90)) at any point after October 2018. As no appeal lies against a BCN this could have swiftly managed the breach of condition 6. Failure to comply with a BCN is a criminal offence (s.187A(9) TCPA90);

• that when determining applications for planning permission that these must be determined in accordance with s.38(6) Planning and Compulsory Purchase Act 2004. There is no room for a subjective assessment based on a developer’s intention or his behavior;
• the fact that there is a breach of condition of a planning permission that is relevant or connected to the application for determination before a LPA is plainly relevant in determining the application. Here it provided a baseline. The breach of condition meant that there was a greater density of development on site, and an increase in built floorspace, this may well have been relevant to development plan policies.

What was the background?

S obtained planning permission in August 2018 for a two-storey dwelling, subject to a condition that required the removal of existing outbuildings before development commenced. The officer’s report recorded an overall reduction in footprint and volume of development, a consolidation of built form and an improved streetscape presentation.

S commenced development without demolishing the outbuildings. He applied for a NMA (s.96A TCPA90) for additional manoeuvring space for agricultural vehicles, which was granted in February 2019. Neighbours threatened to judicially review the NMA on the basis that once the outbuildings were demolished that there would be adequate manooeuvring space available. S wrote to neighbours and the LPA advising: that the outbuildings would be demolished; they would not breach any conditions of the permission; and they would not apply for any other amendments to the scheme. As a consequence, the neighbours agreed not to pursue a judicial review.

S applied for planning permission in October 2019 for preservation, refurbishment and re-roofing of the outbuildings, the dwelling was under construction at this stage. S did not apply under s.73A TCPA90 to vary condition 6 of the August 2018 permission. Neighbours objected, and the LPA in determining the application reiterated the comments made in the earlier officer’s report, weighing the benefits of removal of the outbuildings. Permission was refused. The Council then served a “breach letter” on S requiring the removal of the outbuildings or enforcement action would be commenced. Any such action was, however, then held in abeyance as S has submitted an appeal. The Inspector allowed the appeal.

What did the court decide?

The Court determined that both the LPA and the Inspector had approached the determination of the application and appeal respectively in the correct manner. They had considered the application on its merits, and taken the context of the application and planning history of the site into account. That involved comparing the application proposal with the approved scheme. The approved scheme provided a baseline. That baseline was of course the construction of a two-storey dwelling and the demolition of outbuildings; the application proposal required the decision-maker to consider whether against that baseline the retention of the outbuildings was acceptable. That was an exercise of planning judgement. The LPA had determined to refuse permission, and the Inspector to allow the appeal. There was nothing wrong with the exercise that had been undertaken by either decision-maker.

The Court also iterated that although S had misled the claimant, this was not a basis on which the appeal could be refused; and although the Inspector could have better articulated the tests that he had to apply in determining the appeal, there was no error of law.

The Court declined to make a declaration that the dwelling was unlawful (given that a condition precedent on the permission had been breached), that was a matter for the LPA to determine. Any enforcement was also a matter for them and not the Court.

Case details

• Court: High Court
• Judge: Lang J
• Date of judgment: 08/11/2021