Lord Justice Lindblom:
Introduction
- What is the scope of an appeal against an enforcement notice on ground (f) in section 174(2) of the Town and Country Planning Act 1990 when the appellant complains that the steps required by the notice exceed what is necessary to remedy any "injury to amenity" caused by the alleged breach of planning control but has not brought an appeal on ground (a) contending that planning permission ought to be granted? That is the question at the heart of this appeal.
- The appellant, Mr Stamatios Miaris, appeals against the order of Mr John Howell Q.C., sitting as a deputy judge of the High Court, dismissing his appeal under section 289 of the 1990 Act against the decision of an inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, who dismissed his appeal under section 174 against an enforcement notice issued by the second respondent, Bath and North East Somerset Council. The enforcement notice was issued on 10 July 2013. It alleged a breach of planning control by the making of a material change of use, without planning permission, of Mr Miaris' premises known as "Opa", at 14 North Parade, Bath, from use as a restaurant to use as a restaurant, drinking establishment and nightclub. It required the use of the premises as a drinking establishment and as a nightclub to cease, and that disc jockeys no longer be allowed to perform there. Mr Miaris appealed against the notice on 5 August 2013, relying only on ground (f). The appeal was determined on the parties' written representations. The inspector's decision letter is dated 7 March 2014. He found that the "general planning considerations" Mr Miaris had raised were not appropriate in a ground (f) appeal where there was no appeal under ground (a) and no deemed application for planning permission. He therefore declined to consider the parties' representations on the planning merits. The section 174 appeal therefore failed.
The issues in the appeal
- The thrust of Mr Miaris' appeal under section 289, and now the thrust of the appeal before us, was that the inspector misdirected himself as to the scope of ground (f), and should not have excluded the parties' representations on the planning merits. The deputy judge rejected that argument. He held that an appeal against an enforcement notice under ground (f), on the basis that a requirement in the notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control, cannot be entertained when there is no appeal under ground (a) contending that planning permission should be granted, and the planning objections addressed by the requirement are not limited to any "injury to amenity". However, he granted permission to appeal to the Court of Appeal because in his view this was a question "that ought … to be resolved authoritatively in view of its general application". There are seven grounds of appeal. They raise two main issues: first, whether the deputy judge was wrong to conclude that the inspector properly understood the extent of his power to deal with the planning merits under ground (f); and second, whether the deputy judge was wrong to conclude that the requirements in the council's enforcement notice, in particular the requirement that the use of the premises as a drinking establishment must cease, were not merely seeking to remedy the "injury to amenity" allegedly caused by the breach.
The statutory provisions
- The statutory scheme for the enforcement of planning control, now contained in Part VII of the 1990 Act, is a self-contained code. First put in place in section 23 of the Town and Country Planning Act 1947, it has developed through successive reforms, including its amendment by the Planning and Compensation Act 1991 following the report of Robert Carnwath Q.C., as he then was, presented to the Secretary of State for the Environment in February 1989 under the title "Enforcing Planning Control". Amendments to provisions relevant in this case were made by the Localism Act 2011, and came into force on 6 April 2012.
- Section 171A(1) of the 1990 Act provides that either "(a) carrying out development without the required planning permission" or "(b) failing to comply with any condition or limitation subject to which planning permission has been granted" will be "a breach of planning control". Section 172(1) provides that a local planning authority "may issue" an enforcement notice where it appears to them "(a) that there has been a breach of planning control" and "(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations".
- Section 173 provides for the contents and effect of enforcement notices. An enforcement notice must state "the matters which appear to the local planning authority to constitute the breach of planning control" (subsection (1)(a)). Subsections (3) and (4) provide:
"(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are –
(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or
(b) remedying any injury to amenity which has been caused by the breach."
Section 173(5) states that an enforcement notice may, for example, require "(c) any activity on the land not to be carried on except to the extent specified in the notice". Section 173(11) provides for deemed planning permission in the circumstances it specifies:
"Where –
(a) an enforcement notice in respect of any breach of planning control could have required … any activity to cease, but does not do so; and
(b) all the requirements of the notice have been complied with,
then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of … the carrying out of the activities.
…".
- Section 174(4) requires a person who gives notice of an appeal against an enforcement notice to submit to the Secretary of State, a statement in writing specifying the grounds on which he is appealing against the notice. Section 174(2) provides the grounds on which an appeal against an enforcement notice may be brought. Ground (a) is:
"… 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".
Ground (b) is that the matters allegedly constituting a breach of planning control have not occurred, ground (c) that those matters, if they occurred, do not constitute a breach of planning control, and ground (d) that at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control constituted by those matters. Ground (f) is:
"… 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 …
…".
The effect of subsections (2A) and (2B) of section 174, introduced by the Localism Act 2011, is that, in England, an appeal on ground (a) cannot be brought if a retrospective application for planning permission has been made but an enforcement notice has been issued before the time for making a decision on the retrospective application has expired. Section 70C, also introduced by the Localism Act 2011, provides that a local planning authority in England may decline to determine a retrospective planning application if an enforcement notice has previously been issued for any part of the development.
- Section 176 provides:
"(1) On an appeal under section 174 the Secretary of State may –
(a) correct any defect, error or misdescription in the enforcement notice; or
(b) vary the terms of the enforcement notice,
if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.
(2) Where the Secretary of State determines to allow the appeal, he may quash the notice.
(2A) The Secretary of State shall give any directions necessary to give effect to his determination on the appeal.
… ".
- Section 177 provides for the "[grant] or modification of planning permission on appeals against enforcement notices". Subsection (1) states that 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 …". However, subsection (1C) – another provision introduced by the Localism Act 2011 – provides that if the land to which the enforcement notice relates is in England, subsection (1)(a) applies only if the statement under section 174(4) specifies ground (a) as a ground of appeal. Subsection (2) requires the Secretary of State, when considering whether to grant planning permission under subsection (1), to "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". Under subsection (3) the planning permission that may be granted under subsection (1) is "any planning permission that might be granted on an application under Part III". Before its amendment by the Localism Act 2011, section 177(5) provided that where an appeal was made against an enforcement notice under section 174 the appellant would be "deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control". As amended, subsection (5) provides that, where the enforcement notice relates to land in England, the deemed application for planning permission only arises when ground (a) has been specified as a ground of appeal. Under subsection (5A) when an appeal is made on ground (a), and the requisite fee is not paid within the specified period, the appeal on that ground and the deemed application "shall lapse at the end of that period". Provision for the payment of fees for deemed applications for planning permission is made in regulation 10 of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012. Subsection (6) provides that any planning permission granted under subsection (1) on an appeal "shall be treated as granted on the application deemed to have been made by the appellant".
The enforcement notice and appeal
- The lawful use of Mr Miaris' premises is as a restaurant, under a planning permission granted in 1973. On 4 January 2010 an application for planning permission was made for the change of use of the premises to use as a restaurant, bar and nightclub. That application was refused on 8 July 2010.
- The council's enforcement notice stated (in paragraph 1) that it was being issued because it appeared to the council that there had been "a breach of planning control, under section 171A(1)(a)" of the 1990 Act, and the council considered it "expedient" to issue the notice, "having regard to the provisions of the development plan and to other material planning considerations". The notice identified (in paragraph 3) "[the] matters which appear to constitute the breach of planning control" as being:
"Without planning permission, the unauthorised material change of use of Opa from a restaurant to a mixed use of restaurant, drinking establishment and nightclub".
Three "[reasons] for issuing the notice" were set out (in paragraph 4):
"a) It appears that the breach of planning control occurred within the last ten years.
b) The change of use of the restaurant to a mixed use of restaurant, bar and nightclub has resulted in an increase in pedestrian movements and a change to the pattern and timeframe of movements outside the premises. This has resulted in a detrimental effect upon the well-being of residents of nearby residential properties contrary to policy D2 of the Bath and North East Somerset Local Plan (including minerals and waste policies) adopted 2007 and the aims of the National Planning Policy Framework (Paragraph 58).
c) The change of use of the restaurant to a mixed use of restaurant, bar and nightclub has resulted in an increase in noise, vibration and disturbance. This adverse effect upon health, the environment and general amenities of the area is contrary to policy ES12 of the Bath and North East Somerset Local Plan (including minerals and waste policies) adopted 2007 and the aims of the National Planning Policy Framework (Paragraph 123)."
The requirements of the notice (in paragraph 5) were:
"a) Stop using Opa as a drinking establishment.
b) Stop using Opa as a nightclub.
c) Stop allowing DJs to perform at Opa."
The time for complying with those requirements was 21 days. The notice stated (in paragraph 6) that it would take effect on 7 August 2013, unless an appeal was made against it beforehand.
- Mr Miaris' case on appeal, submitted on his behalf in representations prepared by HLF Planning, was that the cessation of the use of the premises as a nightclub had overcome the council's reasons for serving the enforcement notice. He did not dispute that this was a reasonable and necessary requirement of the notice. But he did contest the other two requirements. The requirement to cease using the premises as a drinking establishment was excessive. A premises licence had been granted for the sale of alcohol until 2 a.m.. If he was to run his business viably he needed to be able to sell alcohol to customers who were not dining in the restaurant. To overcome the objection to the use of the premises as a drinking establishment, and to ensure the permitted use in class A3 in the Town and Country (Use Classes) Order 1987 (as amended) remained the primary use, it would be possible to limit the number of people who came to the premises and did not eat there to 60 at any given time. And the requirement not to allow disc jockeys to perform in the premises was unnecessary. The enforcement notice did not limit pre-recorded music being played or live bands performing. A noise abatement notice had been served in October 2008, and this was effective in controlling the impact of music played inside the premises. Preventing disc jockeys performing would result in a loss of jobs for local people. The enforcement notice should therefore be varied so that its requirements would be to stop using the premises as a nightclub and to restrict the number of customers not eating there to 60 at any time.
- In their representations the council contended that all three requirements of the notice were necessary. The premises licence, granted under a different statutory regime, was irrelevant. It might be acceptable for some patrons to drink in the premises without eating a meal, though only if this activity were ancillary to the permitted restaurant use. But it would be "very difficult, if not impossible, to set boundaries for such ancillary activities in an enforcement notice". A limit on the number of non-dining drinkers would be impossible to enforce. The requirement in the notice that the premises were not to be used as a drinking establishment, in class A4, rather than as a restaurant within class A3, was clear and reasonable. The requirement that the premises were not to be used as a nightclub – a sui generis use – was still justified, because it would restrain any such breach of planning control in the future. The same applied to the requirement that disc jockeys should not be allowed to perform in the premises. That activity was part and parcel of a nightclub use. The enforcement notice did not prevent the playing of "background music", but the music played by disc jockeys was usually louder than that and "of a different character". Disc jockeys performing at the premises had caused "considerable noise and disturbance" to local residents, and this was "a key part of the change in character from a restaurant to a drinking establishment/nightclub". Any loss of local employment was likely to be minimal, and would not outweigh the harm that this requirement of the notice was intended to deal with. Clear requirements were needed in the notice "to ensure that the unauthorised activities cease and do not re-occur".
- In paragraph 1 of his decision letter the inspector said that the appeal was dismissed and the enforcement notice upheld. He considered the appeal on ground (f) in paragraphs 3 to 7:
"3. Ground (f), which is the only ground of appeal in this case, is the appropriate ground where an appellant seeks to argue that the steps required by the Notice exceed what is necessary to remedy the breach of planning control or, as the case may be, to remedy the injury to amenity which has been caused by any such breach.
4. In this case there is no ground (a) appeal or deemed application. Consequently, the appeal under ground (f) cannot be turned into something else by arguing, for example, that the amenities of neighbours are not harmed by drinking at the building or that a single themed night is not harmful (The case of Secretary of State for the Environment, Transport and the Regions v Wyatt Brothers (Oxford) Ltd [[2002] PLCR 18] refers). Accordingly I have been unable to take account of the general planning considerations raised by the appellant as these are more appropriate to an appeal on ground (a).
5. Requirement (a) is to stop using Opa as a drinking establishment. The argument against this, that additional patrons attracted only for drinking would not be harmful, is a matter of planning merits. Similarly the suggestion that a limit on the number of customers to the restaurant who have a drink but no food would overcome the problem also assumes a decision has been made as to what number of customers would be acceptable, again one I cannot make without considering the merits of the case. Although I would add that had I been able to do so the enforceability of such a condition or limit would seem to present considerable problems.
6. Requirement (b) is to stop using Opa as a nightclub. This seems straightforward to me and the appellant claims he has already done so. Whether a once a week themed Spanish evening could be classed as a restaurant use or would breach the requirements of the notice is a matter to be taken up with the Council.
7. Requirement (c) is to stop DJs. The argument against this is that it is excessive as there is nothing in the notice that restricts live music and a DJ playing music is no different from a pre-programmed music system. There is a noise abatement order in force at the premises and this provides sufficient control to prevent any excess noise, hence whether a DJ is employed or not is irrelevant. However, I agree with the Council that a DJ is not generally found at a restaurant use but is part and parcel of a nightclub. The objective of the notice is to turn Opa back into a restaurant from the nightclub use into which it had apparently morphed. Preventing a DJ therefore is directly related to the allegation and does not seem excessive in this context."
The deputy judge's conclusions
- After a comprehensive analysis of the issues in Mr Miaris' section 289 appeal the deputy judge came to these conclusions (in paragraphs 68 and 69 of his judgment):
"68. For the reasons given above, an appeal against an enforcement notice made under ground (f), on the basis that any step specified in an enforcement notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control, cannot be entertained when (i) there is no appeal under ground (a) that planning permission should be granted and (ii) the planning objections which the step addresses are not limited to any injury to amenity. An appeal on that basis when there is no appeal under ground (a) may be considered on its merits, however, if the step in issue is one solely to remedy any injury to amenity caused by the breach of planning control. Whether an appeal lies on this basis under ground (f), therefore, is not determined by the particular paragraph in section 173(4) on which the local planning authority may have relied to specify the step in issue. It depends on the nature of the planning objection that the step seeks to remedy.
69. In this case there was no appeal against the enforcement notice under ground (a). The relevant step, that the use of the premises as a drinking establishment must stop, was not one merely seeking to remedy the injury to amenity such a use had caused. Accordingly the Inspector did not err in law in refusing to consider the merits of the Appellant's contention that the step exceeded what was necessary to remedy any such injury, and other general planning considerations the Appellant used, in support of its appeal against that step under ground (f)[.]"
The scope of the ground (f) appeal
- Mr Jonathan Wills, for Mr Miaris, submits that the enforcement of planning control is essentially a "remedial" process, not a "punitive" one – as Carnwath L.J. said in Tapecrown Ltd. v First Secretary of State [2007] 2 P. & C.R. 7 (at paragraph 46). Basing his submissions on that principle – which Ms Estelle Dehon for the Secretary of State does not dispute – Mr Wills repeats the argument that failed before the deputy judge.
- First, he submits that the scope of an appeal on the second limb of ground (f) is not reduced by the absence of an appeal on ground (a) and a deemed application for planning permission. Nor does it depend on which of the two "purposes" in section 173(4) the requirements in the enforcement notice were intended to achieve, or on the nature of the "planning objections" that those requirements were intended to overcome. In so far as the Court of Appeal decided otherwise in Wyatt, it was wrong to do so. "Purpose" does not determine an inspector's powers under ground (f). Mr Wills accepts that when an appellant is seeking planning permission for the matters alleged in the notice, ground (a) is the appropriate ground of appeal. He accepts that, when no appeal is brought on ground (a), an inspector allowing an appeal on ground (f) has "no power to grant planning permission subject to a conventional planning condition". But, he says, the concept of "under-enforcement" is inherent in the statutory scheme. A successful appeal on ground (f) can lead to planning permission being granted under section 173(11). Issues of planning judgment may arise under ground (f) as well as under ground (a) (see, for example, the judgment of Sullivan L.J., with which Lloyd Jones and Rafferty L.JJ. agreed, in Secretary of State for Communities and Local Government v Ioannou [2014] EWCA Civ 1432, at paragraph 39). An inspector must in every case consider any "obvious alternative" to the development targeted by the enforcement notice (see, for example, the judgment of Carnwath L.J. in Tapecrown, at paragraph 46). The second limb of ground (f) always enables an appellant to argue that nothing more is necessary than to remedy the harm to amenity, and that the requirements of the enforcement notice go too far.
- Mr Wills also argues, however, that if the decision in Wyatt is correct, and the ambit of a ground (f) appeal does depend on the "purpose" behind the requirements in the enforcement notice, the deputy judge was wrong to focus instead on "planning objections". The inspector must ascertain what the relevant "purpose" truly is before deciding whether or not he can deal with representations on the planning merits. This question is an objective one for the inspector – not the court – having regard to the content of the enforcement notice. In this case the inspector failed to address it. But it is clear, says Mr Wills, that the requirements in the council's notice are directed at least in part to the statutory purpose of remedying "injury to amenity". Where this is so, he submits, an appeal can be considered on the second limb of ground (f). That was not so in Wyatt (see paragraph 28 of Kennedy L.J.'s judgment). Here it was – as the deputy judge accepted (in paragraph 66 of his judgment). If, however, as the deputy judge held, his "jurisdiction" under ground (f) is founded on "planning objections" rather than statutory "purposes", the inspector must ask himself whether the requirements of the notice are at least partly directed to overcoming "amenity-based planning objections" – again a matter for him, not the court, and subject only to challenge on Wednesbury grounds.
- Mr Wills contends that if the inspector had decided to allow the appeal on ground (f) he would have varied the council's enforcement notice, and a deemed planning permission would then have been generated under section 173(11) – for such activity as the notice could have required to cease but did not. But before deciding to let that happen he would first have had to consider all relevant planning objections, including those of third parties, and including those relating to matters other than "injury to amenity", in the light of any representations made to him and having regard to all material considerations. An inspector has a discretion to allow or dismiss the ground (f) appeal, under section 176(2), which states that he "may" quash the notice. This is of a piece with the very wide power afforded by section 176(2A) to make "any directions" required to give effect to his decision (see paragraphs 31 and 32 of Kennedy L.J.'s judgment in Wyatt, and paragraph 31 of Richards L.J.'s in Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566).
- I cannot accept those submissions. They do not, in my view, reflect the role and effect of ground (f) within the statutory scheme. They exaggerate the remedies potentially available under that ground where it is the sole basis for an appeal against an enforcement notice. And they do not find support in the relevant case law, which, as Sullivan L.J. stressed in Ioannou (at paragraph 35) must always be "understood in the context of the factual and legal issues … in dispute …".
- In this case there was no appeal on ground (b), ground (c) or ground (d). Mr Miaris also chose not to pursue an appeal on ground (a). As Ms Dehon submits, however, his real complaint in the section 289 appeal, and now in his further appeal to this court, is that the inspector did not consider the planning merits of his alternative proposal. What he was seeking to achieve by his appeal against the notice was not the approval of the use of the premises as a restaurant, drinking establishment and nightclub – the enforced against use – but approval for its mixed use as a restaurant and drinking establishment, or at least for its use as a restaurant with a substantial ancillary use as a drinking establishment, subject to a degree of control on the number of non-dining drinkers.
- In my view, as the deputy judge held, the inspector was undoubtedly right to conclude that that outcome could not be achieved by means of an appeal on ground (f) in the absence of an appeal on ground (a) and a deemed application for planning permission.
- The deputy judge rejected Mr Wills' submission that the Court of Appeal's decision in Wyatt was unsound. I think he was right to do so. As he said (in paragraph 44 of his judgment), the Court of Appeal's decision in Wyatt shows that "the Secretary of State may have no power to consider an appeal made under ground (f) on the basis that the requirements of the notice exceed what is necessary to remedy the injury to amenity caused by the breach on its merits when there is no appeal seeking planning permission on ground (a)". The Court of Appeal's decision remains good authority for that proposition. I think Mr Wills' submission to the contrary is untenable.
- In Wyatt the appeal on ground (a) and the deemed application for planning permission had lapsed because the prescribed fee had not been paid. The inspector had ruled that, since the enforcement notices had been framed on the basis of a purpose within section 173(4)(a), evidence relevant only to remedying "injury to amenity" would not be heard on the ground (f) appeal. That ruling was endorsed by the Court of Appeal, which accepted that, where all the steps required by an enforcement notice were for one of the purposes in section 173(4)(a), the inspector could not, in the absence of an appeal under section 174(2)(a), deal with general planning considerations under section 174(2)(f).
- The court acknowledged that the purposes set out in section 173(4)(a) and (b) are not mutually exclusive, and can be relied on in combination – which was not contentious (see paragraph 22 of Kennedy L.J.'s judgment, with which Sedley and Mummery L.JJ. agreed). It was submitted – as Mr Wills also submits here – that if an appeal against an enforcement notice is brought on ground (f) it is always open to the appellant to contend that the steps required by the notice exceed what is necessary to remedy any injury to amenity caused by the breach (paragraph 23 of Kennedy L.J.'s judgment). The alternative argument was that when at least one of the purposes the authority seeks to achieve is within section 173(4)(b), an appellant relying on ground (f) will be entitled to argue that the steps specified in the notice exceed what is necessary to remedy any injury to amenity (paragraph 24). Kennedy L.J. saw force in the Secretary of State's submission that ground (f) "will only be considered in a situation where a breach of planning control is established and planning permission ought not to be granted", and, in such a situation, "cannot sensibly be interpreted in such a way as to enable the appellant to present in support of that ground evidence and arguments as to planning merits which, if not already rejected, should have been presented in support of ground (a)" (paragraph 26). The court did not have to decide whether there might be circumstances in which evidence on the planning merits would be admissible in the absence of a ground (a) appeal. The judge at first instance had said that "[an] appeal on the ground of exceeding what is necessary to remedy injury to amenity is available, in the absence of a deemed planning application, only if the steps required by the notice are solely for the purpose of removing or alleviating injury to amenity which has been caused by the development" (paragraph 27). Kennedy L.J. expressed the view that the use of the word "solely" rendered that proposition "too restrictive". But in any event, "having regard to the unassailable finding that in this case all of the steps required were for one of the purposes specified in section 173(4)(a)", he agreed with the judge's conclusion that the inspector's ruling was right (paragraph 28).
- The decision in Wyatt has not since been doubted by the Court of Appeal (see, for example, the judgment of Richards L.J., with whom Floyd and Underhill L.JJ. agreed, in Ahmed, at paragraphs 28 and 29). It has recently been followed twice at first instance, in Mata v Secretary of State for Communities and Local Government [2012] EWHC 3473 (Admin) and Elmbridge Borough Council v Secretary of State for Communities and Local Government and Giggs Hill Green Homes Ltd. [2015] EWHC 1367 (Admin).
- As the authorities show, there will be many cases where grounds (a) and (f) can be used together to achieve more than could be gained under ground (f) alone. For example, in Tapecrown there was a deemed application for planning permission for the retention of the building whose demolition was required by the enforcement notice, as well as appeals on grounds (c), (f) and (g). Considering the inspector's task under ground (f) and contrasting it with the scope of ground (a), Carnwath L.J., with whom Wilson and Hughes L.JJ. agreed, said this (in paragraph 32 of his judgment):
"… Repairing the damage to amenity may be only part of what is needed. Even a physically unobtrusive development may be objectionable in planning terms, but it may be made more acceptable by steps short of total demolition. That is the province of ground (a), which needs to be read with s.177. The latter makes clear that, on an enforcement appeal, planning permission may be granted in respect of the matters alleged in the notice "in relation to the whole or any part of those matters" (s.177(1)(a)); that for this purpose ordinary planning considerations (including the development plan) must be taken into account (s.177(2)); and that the permission is to be treated as though granted on an application (s.177(3)(6)), and so (at least by implication) may be subject to any necessary conditions." (my emphasis).
Thus, as Carnwath L.J. went on to say, an inspector "has wide powers to decide whether there is any solution, short of a complete remedy of the breach, which is acceptable in planning terms and amenity terms", which will enable him "to modify the requirements of the notice, and grant permission subject to conditions (or to accept a s.106 agreement, if offered)" (paragraph 33). This was the context in which Carnwath L.J. said that "[if] on his consideration of the submissions and in the light of the site view, it appears to [the inspector] that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it" (paragraph 46).
- In Ahmed the appeal was brought under grounds (a), (e) and (f). Richards L.J. distinguished the case from Wyatt in that there was here a ground (a) appeal, whereas in Wyatt there was not. As he said (in paragraph 28 of his judgment), it was not contended that the result sought by the appellant "could have been achieved under ground (f) alone", but rather that "the representations made by him under ground (f) ought to have caused the inspector to consider the obvious alternative of granting permission for the [previously approved] scheme under ground (a) …". What was said on the first issue in Wyatt was therefore "simply not in point".
- As Sullivan L.J. emphasized in Ioannou, an inspector's power to allow an appeal on the second limb of ground (f) is relatively narrow when he is not also given the opportunity of determining an appeal under ground (a). The appellant in that case had appealed on grounds (a), (d), (f) and (g). Sullivan L.J. observed (in paragraph 28 of his judgment) that the power to allow an appeal under ground (f) "is not a power to grant planning permission", and that if planning permission is to be granted in response to an appeal under section 174 "it may only be granted under section 177(1)". Parliament had provided for planning permission to be granted on an appeal under section 174, but had "deliberately limited the scope of both the ground (a) appeal and the deemed application for permission to the matters stated in the enforcement notice as constituting a breach of planning control", and had also "limited the permission that may be granted under section 177(1) to the whole or any part of those matters" (paragraph 33). In those circumstances, said Sullivan L.J., "it would not be appropriate to sidestep that limitation by adopting an interpretation of subsection 173(11) which would, when taken in conjunction with a successful ground (f) appeal, have the effect of granting planning permission for matters other than those specified in the notice as constituting the breach of planning control". This conclusion was "supported by the role of the development plan in the decision-making process" (ibid.).
- Sullivan L.J. went on to say that in Tapecrown Carnwath L.J. "was not establishing a free-standing "obvious alternative" test as a replacement for … the express statutory limitations imposed by subsections 177(1) and 173(11) upon the nature and extent of the planning permissions that may be, or be treated as having been, granted in response to appeals under section 174" (paragraph 37). The "obvious alternatives" Carnwath L.J. had in mind were alternatives that, as the parties agreed, "would fall within the scope of a ground (f) appeal" (ibid.). Deciding an appeal under ground (f) might well involve "an element of planning judgment", overlapping to a certain extent with an inspector's judgment as to "the wider planning merits under ground (a)" – as had been recognized in Tapecrown, Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202 and Ahmed. But the fact that "injury to amenity" was relevant under both grounds did not make ground (f) superfluous. Nor did it follow that ground (f) was otiose because "it cannot be used in conjunction with subsection 173(11) to secure for an alternative scheme a planning permission which is unobtainable under section 177(1)" (paragraph 39).
- In the light of the authorities Ms Dehon submits, rightly in my view, that there is a substantial difference in scope between appeals on ground (a) and appeals on the second limb of ground (f). This difference in scope between the two grounds has not been reduced by the changes to the statutory scheme introduced by the Localism Act 2011, including the amendment to section 177(5), the effect of which is that there is now, in England, no deemed application for planning permission unless an appeal has been made on ground (a) (see paragraph 9 above). The "express statutory limitations" in sections 177(1) and 173(11) to which Sullivan L.J. referred in Ioannou remain. There is no free-standing "obvious alternative" test. And the role of section 176(1) is tightly constrained. As was recognized in Wyatt, section 176(1)(b) does not provide an alternative route to the remedies potentially available through an appeal on ground (a). In my opinion, therefore, the decision in Wyatt, properly understood, sits well with the statutory scheme both as it was at the time of the decision and now, and with the subsequent jurisprudence. A strong theme in the authorities is that, if there is no appeal on ground (a), the reach of an appeal on the second limb of ground (f) is limited.
- It is convenient at this stage to consider Mr Wills' argument on "discretion". I agree with the deputy judge's very full treatment of this point (in paragraphs 50 to 52 of his judgment). In short, there is no provision in the statutory scheme capable of being read as containing a discretion to grant or refuse planning permission where the only ground of appeal is ground (f). In Ahmed Richards L.J. accepted (at paragraph 31) that if the inspector in Wyatt had allowed the appeal under ground (a) "it would have been open to him to vary the enforcement notice to give effect to that decision" – though he queried the view expressed by the court that the relevant provision was section 176(2A) rather than section 176(1)(b). In his judgment in Wyatt Kennedy L.J. referred to the power in section 176(2A) to vary an enforcement notice "to give effect to a decision in favour of an appellant in relation to one of the statutory grounds …" (paragraph 31). He described section 176(1) as "… a generously expressed slip rule, … not a power which can properly be used to attack the substance of an enforcement notice" (paragraph 32). A notice requiring land to be returned to its condition before the breach could not, through section 176(1)(b), be turned into a notice requiring something less. If the recipient of the notice wanted to achieve that result, he could do so by appealing on ground (a) and pursuing the deemed application for planning permission under section 177 (ibid.). Kennedy L.J. went on to say that if the "appellate structure" to which section 176(1)(b) belongs was not to be undermined, this provision had to be read "in such a way as not to afford a remedy obtainable by pursuing an appeal under ground (a) in section 174(2), and the inspector was right so to read it …" (paragraph 34). Nor, in my view, does a relevant discretion arise under section 176(2), or under section 176(2A). The Secretary of State's power under section 176(2) to quash an enforcement notice when he "determines to allow the appeal" does not afford him a discretion to allow or dismiss the appeal, nor does the requirement under section 176(2A) to "give any directions necessary to give effect to his determination on the appeal".
- In my view the deputy judge's conclusions in paragraph 68 of his judgment were correct, and accord with the principles that emerge from the decisions of this court to which I have referred.
- The deputy judge's analysis, basically, was this. The requirements in an enforcement notice may, and often will, serve both the purpose of remedying a breach of planning control – the purpose in section 173(4)(a) – and the purpose of remedying any injury to amenity – the purpose in section 173(4)(b). If such a requirement is complied with, other planning objections to the development constituting the breach may also be overcome (paragraph 47 of the judgment). But in many cases "planning objections" to the development will remain even if any injury to amenity caused by it is eliminated (ibid.). Therefore, if an appeal could be considered on ground (f) alone on the basis that a requirement in the enforcement notice exceeds what is necessary to remedy any injury to amenity, but the planning objections addressed by that requirement were not limited to any injury to amenity, making the appeal good would not justify quashing or varying the notice (paragraph 48). Other planning objections, to what would then have to be treated under section 173(11) as having been given planning permission, would never be considered on their merits (ibid.). An appeal on ground (f) on the basis that a requirement in the notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control may be entertained in the absence of an appeal on ground (a), if that requirement is one solely to remedy any injury to amenity (paragraph 55). If, on the other hand, the requirement addresses any planning objection other than injury to amenity, and if there is no appeal on ground (a), the ground (f) appeal would be irrelevant (paragraph 56).
- This analysis seems both logical and pragmatic, and I agree with it. It recognizes the significance of the planning objections that will be met if the requirements in the notice are complied with. It is not governed by the particular purpose in section 173(4) on which the local planning authority has relied (paragraph 57 of the judgment). It sits well with the statutory scheme, both before and after the amendments introduced by the Localism Act 2011. It respects the legislative intent to avoid the general planning merits of alternative proposals being assessed in an enforcement notice appeal when no appeal has been made on ground (a), and there is no deemed application for planning permission. The deputy judge was not, as I understand him, seeking to add any novel proposition of law to those applied in previous cases – or, as Mr Wills submitted, to create a new "test". He was not seeking to exclude consideration of the statutory purpose for which the requirements in the enforcement notice were specified. And in any event the dichotomy between planning objections and statutory purposes implicit in Mr Wills' submissions is, I think, false. The planning objections to the development against which the enforcement action is being taken will usually be clear from the notice itself, read as a whole. They are likely to be apparent both in the requirements that must be specified for one or both of the purposes in section 173(4) and in the reasons given for the enforcement notice being issued.
- I should add, as did the deputy judge (in paragraph 58 of his judgment), that in Wyatt the Court of Appeal did not have to consider what the position would have been if one of the purposes for which the requirements in the enforcement notice had been specified had been to remedy, or at least partly to remedy, injury to amenity – a matter raised too late in those proceedings. As the deputy judge said, the decision on the appeal in that case was that, in the absence of an appeal on ground (a), it is not open to an inspector to consider an appeal on ground (f) on the basis that any requirement exceeds what is necessary to remedy any injury to amenity "when the purpose or purposes for which the requirements were specified do not include remedying any injury to amenity" – the kind of case where there necessarily will be other planning objections.
- I see nothing in Mr Wills' submission that the inspector fell into error by failing to identify which of the two "purposes" in section 173(4) lay behind the requirements in the enforcement notice or the nature of "planning objections" that those requirements were intended to meet. In paragraph 65 of his judgment the deputy judge noted that this was not a ground on which permission to appeal had been granted under section 289. But in any event it is, I think, a bad point.
- The inspector had to direct himself properly as to the scope of his powers under ground (f). And in my view he clearly did that. His decision letter shows that he was very conscious of the limited scope of an appeal on ground (f). Crucially, in paragraph 4, having referred to the absence of an appeal on ground (a) and deemed application for planning permission, and to the Court of Appeal's decision in Wyatt, he said he was unable to take account of "the general planning considerations" raised in the appeal, which he found were "more appropriate to an appeal on ground (a)". In paragraph 5 he referred to Mr Miaris' argument against the requirement to stop using the premises as a drinking establishment as "a matter of planning merits", and the suggestion that the number of non-dining drinkers in the restaurant could be controlled as a point relevant to "the merits of the case". Finally, in paragraph 7, where he considered the requirement to stop disc jockeys performing in the premises, he identified the "objective" of the enforcement notice as being "to turn Opa back into a restaurant from the nightclub use into which it had apparently morphed". Read fairly as a whole, the decision letter explains as clearly as it should why he found it impossible to grapple with the case put forward by Mr Miaris within the scope of an appeal confined to ground (f). He made no error of law. He was under no duty to elaborate his reasons with any further discussion of "purposes" or "planning objections". His approach and conclusions were consistent with the essential reasoning in this court's decision in Wyatt, and with subsequent relevant authority. His reasons were succinct but, in my view, sufficient.
"Injury to amenity"
- Mr Wills challenges the deputy judge's conclusion in paragraph 69 of his judgment that the inspector did not err in law in refusing to consider both the merits of the contention that the requirement to stop using the premises as a drinking establishment went further than was necessary to remedy any "injury to amenity" and the "other general planning considerations" put forward by Mr Miaris in his ground (f) appeal. He submits that the "purpose" underlying the requirements in the notice was concerned only with "injury to amenity". So too, he says, were the "planning objections" that those requirements were intended to overcome. The deputy judge, he submits, failed to see that the purpose of the requirements was fully within section 173(4)(b). This was plain from the reasons given by the council for issuing the notice, which refer to the "general amenities of the area". There were, in fact, no planning objections of any other kind. Although the reasons for issuing the notice refer to policies of the development plan, this does not change the nature of the objections themselves – as the aim of the policies was to prevent harm to amenity. And the references to the "well-being of residents" and the "adverse effect upon health" did not take the objections beyond the very broad concept of "amenity" in the statutory scheme. So even if the deputy judge's conclusions on the scope of an appeal on the second limb of ground (f) were correct, the inspector should have tackled the parties' representations on the planning merits.
- I reject those submissions.
- "Injury to amenity" is, of course, a somewhat imprecise concept. It appeared in the statutory scheme for the enforcement of planning control in section 87 of the Local Government and Planning Act 1981, in the amendments made in response to the recommendations of George Dobry Q.C., as he then was, in his "Review of the Development Control System: Final Report" of February 1975. It has survived in subsequent reforms. It is not defined in the 1990 Act. And its meaning has never been fully resolved in relevant case law. It might be unwise to attempt that here, and in my view there is no need to do so. As Carnwath L.J. pointed out in paragraph 32 of his judgment in Tapecrown, "injury to amenity" in this statutory context does not encompass every kind of planning objection (see paragraph 30 above). He distinguished between "damage to amenity" and "ordinary planning considerations (including the development plan)". I do not take this to mean that "injury to amenity" is unlikely to offend policy in the development plan. Often, of course, it will. The distinction Carnwath L.J. was making, as I see it, was between "amenity" and the many other considerations potentially relevant to the business of regulating the development and use of land in the public interest.
- The requirements specified in the council's enforcement notice clearly serve both purposes in section 173(4). Each of the three requirements was a requirement for a particular activity to cease: the use of the premises as a drinking establishment, their use as a nightclub, and disc jockeys performing there. The first two requirements serve the purpose in paragraph (a): "… remedying the breach … by discontinuing any use of the land …". They attack two of the three elements of the "mixed use of restaurant, drinking establishment and nightclub", which was the material change of use from "restaurant" use, without planning permission, constituting the alleged and undisputed breach of planning control. The third requirement, to stop allowing disc jockeys to perform in the premises, is intended to meet a planning objection to the unlawful use of the premises.
- In its allegations of planning harm in the reasons it gave for issuing the notice, the council took care to make plain that it was not merely concerned with "injury to amenity". It deliberately went further than that. The reasons go beyond "amenity" and into the realm of other planning considerations. Reason b) refers to the consequences of the material change of use – an "increase in pedestrian movements", a "change to the pattern and timeframe of movements outside the premises", and the resulting "detrimental effect upon the well-being of residents of nearby residential properties", contrary to local and national policy. Policy D2 of the local plan is referred to, and so is the policy in paragraph 58 of the National Planning Policy Framework ("the NPPF"). Reason c) refers to an "increase in noise, vibration and disturbance", which was having an "adverse effect upon health, the environment and the general amenities of the area", again contrary to local and national policy. This reason refers to Policy ES12 of the local plan and the policy in paragraph 123 of the NPPF. Thus the council expressly included considerations other than the "general amenities" of the area, which it differentiated from "health" and "the environment". Objections as broadly expressed as these clearly include, but are not limited to, "injury to amenity". They lie within the province of an appeal on ground (a), but beyond the range of an appeal made solely on ground (f).
- In these circumstances I cannot see how it can be suggested that the council, in taking this enforcement action, regarded the material change of use against which it was enforcing as objectionable merely in terms of "injury to amenity", or that the purpose it sought to achieve by the requirements of the notice fell only within paragraph (b) in section 173(4). As the deputy judge said (in paragraph 66 of his judgment), the reasons stated for the issuing of the notice indicate plainly that the council was concerned with the injury to amenity that the use of the premises as a drinking establishment and as a nightclub had caused but also indicate that the council was concerned with the effect of those uses on the health and well-being of nearby residents and these were "not merely matters of amenity". I agree. Therefore, as the deputy judge went on to say (in paragraph 67), the inspector was "entitled, in the absence of an appeal under ground (a), to decline … to consider any contention on its merits that additional patrons attracted to the premises would not be harmful and that a limit on the numbers who drink but not eat there would be acceptable". Again, I agree. Indeed, the inspector was not only entitled to proceed as he did; he would have been at fault if he had not done so.
Conclusion
- I am in no doubt that the inspector did not have the power under ground (f) to determine the planning merits in Mr Miaris' appeal against the council's enforcement notice, and that the decision he made was in all respects lawful. I would therefore dismiss this appeal.
Lord Justice Tomlinson
- I agree.
Lord Justice Longmore
- I also agree.
