In May, Justice Foskett handed down judgment in the High Court touching on issues of implementation/commencement of planning permission and the principles confirmed in the recent Iaonnou and Ahmed decisions.
In May 2008 Giggs Hill Green Homes Limited (“Giggs”) secured planning permission on appeal for the construction of nine three-storey residential units with basement parking. Giggs then proceeded to add a added a tenth residential unit and extended the basement area, thereby exceeding what was permitted by the permission. In the meanwhile the Council discharged a number of conditions.
In November 2013 the Council issued an Enforcement Notice alleging that the entire development was unauthorised. The requirements of the notice were to demolish the entire scheme within 9 months.
Giggs appealed the notice and the Secretary of State's Inspector varied the EN to require the development to comply with the planning permission originally granted for a similar (though less extensive) development.
The Appellant Council appealed pursuant to section 289 of The Town and County Planning Act 1990, seeking an order quashing that decision, on the basis that the Inspector exceeded his statutory powers. Permission to appeal was granted. On 27 April 2015 the Secretary of State indicated by a letter from the Treasury Solicitor conceding that the Inspector's decision should be quashed. However, Giggs continued to resist the appeal.
Elmbridge challenged the Inspector’s decision and said (i) that there was no extant planning permission in play before the Inspector since the earlier permission had not been implemented and had lapsed and (ii) in those circumstances the Inspector had no power to remedy any breach by seeking to make the works comply with the terms of a previous planning permission since there was no effective planning permission in existence. Equally, the absence of a Ground (a) appeal made it impermissible for the Inspector to consider general planning considerations when determining the Ground (f) appeal.
The appellant (Giggs) contended that the original planning permission had been implemented and that the additional unit was only added afterwards.
Justice Foskett was not satisfied that the Inspector’s decision letter was explicit on whether or not he considered that the 2008 permission had commenced. Had he been able to conclude that the Inspector found as a fact that there was still in existence a valid planning permission (and that such a conclusion had evidence to support it), then he says he would have been able to uphold the EN as varied. Equally, had there been a Ground (a) appeal and/or a deemed planning application before the Inspector, Justice Foskett felt the Inspector’s decision could have been upheld. However, neither situation obtained, and in the circumstances found for the Council. He quashed the Inspector’s decision and sent the matter back to the Secretary of State for reconsideration.
This judgment confirms the principles contained in SSCLG v. Ioannou  EWCA Civ 1432 and Ahmed v. SSCLG  EWHC 2084 (Admin) that the absence of a Ground (a) appeal makes it impermissible for an Inspector to consider general planning considerations when determining the Ground (f) appeal. An Inspector will now have to consider afresh whether the 2008 permission was still extant. If he does consider that the permission is extant, it looks like he might have to come to the same conclusion as the previous Inspector. But if a new Inspector agrees that the 2008 permission is no longer extant, the Ahmed and Ioannou principles will prevent an Inspector from granting permission for a 9 unit scheme.