Article first appeared in May 2014 NAPE newsletter.
Earlier this month, the Court of Appeal handed down judgment in the Ahmed case (not to be confused with last year’s Ahmed v London Borough of Newham case).
Ahmed v SoS and London Borough of Hackney EWCA Civ 566
Summary of case history:
-In 2005 planning permission was given for a 3 storey building comprising a retail unit and 6 flats.
-In 2007 building operations commenced on a 4 storey building comprising a retail unit and 7 flats. This was completed in 2009.
-Because the original 2005 permission was never implemented, it expired after 5 years.
-On 3 September 2010 am Enforcement Notice was issued by London Borough of Hackney requiring the removal of the 4 storey building, as it was wholly unauthorised.
-Mr Ahmed appealed the Enforcement Notice on grounds (a), (e) and (f)
-Inspector dismissed appeal. In relation to ground (a) he compared the development as built with the scheme approved in 2005 in reaching his conclusion that planning permission for the development as built should be refused and that the appeal on ground (a) should fail. On ground (f) he decided that there were no lesser steps that could overcome the harm to amenity because the 2005 permission had expired and he had decided that the as-built scheme should not be permitted under ground (a).
-Mr Ahmed appealed to High Court under S. 289 TCPA, which appeal was allowed and the matter was remitted back to the Inspector. Emerson DJ stated that there was an obvious alternative that could have remedied the breach of planning control, namely that part of the building which could remain standing in accordance with the 2005 consent had it not lapsed.
-Secretary of State appealed against the High Court decision on two main grounds: 1) that given the way Mr Ahmed's appeal was pursued the inspector did not have the power to grant planning permission for the 2005 scheme; and 2) that even if the inspector did have that power, he did not err in law in failing to consider the possibility.
The Court of Appeal considered the principles discussed in Tapecrown Ltd v FSS  EWCA Civ 1744,  2 P&CR 7 and Moore v SSCLG  JPL 192 with respecting to the Inspector considering an ‘obvious alternative’ scheme. It was found that although the appellant’s ground (a) appeal sought planning permission only in respect of the development as built, the Inspector had the power to grant planning permission "in relation to the whole or any part of those matters". Therefore, planning permission could have been granted for the 2005 scheme if the differences between it and the development as built were such that a development in accordance with the 2005 scheme could be regarded as a "part" of the development as built.
-Interestingly, the Court of Appeal determined that even though Mr Ahmed had not raised the 2005 consent as an alternative under ground (a), his submissions under ground (f), albeit addressed in terms to remedying the injury to amenity rather than remedying the breach of planning control, should have alerted the Inspector to the possibility that the expired 2005 consent was an obvious alternative and that the Inspector therefore erred in law in failing to consider the possibility.
The impact of this decision is that planning inspectors will need to consider appeals more holistically where there are both ground (a) and (f) appeals. But the impact goes further in that earlier down the line, at the time the enforcement notice is issued and long before it is known which grounds of appeal will be made, if any, officers might need to be even more creative in their consideration of the steps required by the notice, all without a planning application fee.
Izindi Visagie is the founder of Ivy Legal, a law firm specialising in planning enforcement on behalf of local authorities. She can be contacted by email.