Article first appeared in August 2014 NAPE newsletter.
LOUIS SILVER (CLAIMANT) V
(1)SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2)THE LONDON BOROUGH OF CAMDEN AND
BARRIE TANKEL (INTERESTED PARTY)
Silver v SSGLC  EWHC 2729 (Admin)
Facts of the case:
The Claimant owned a two storey red brick detached building which contained three self-contained flats. Planning permission was initially granted on 15 January 2008 for the excavation of the basement level in connection with additional accommodation for the ground floor flat. This was a revision to previous planning permissions granted in 2005 and 2007 respectively. The Council and the Inspector acknowledged there were scaling errors in the plans submitted that the Council did not notice.
Planning permission granted in 2008 was conditional: 1) Development to begin no later than 15 January 2011; 2) The retention and protection of all trees (unless permitted to be removed) and details were to be submitted and approved by the Council prior to the commencement of works 3) No development was to take place until full details of hard and soft landscaping and means of enclosure of all un-built open areas had been submitted and approved by the Council.
The owner wanted to make changes to the 2008 scheme but the planning permission expiry date was approaching. Therefore the services to the rear extension were disconnected and the rear extension was demolished; the only other work that had taken place by mid-January 2011 was the excavation of the basement.
The owner instructed an architect to make alterations to the scheme and an application for planning permission was made. It was decided the works undertaken differed from the permitted scheme as the works were sufficiently materially different from the scheme, planning permission had not been implemented; without planning permission the works were unlawful. Retrospective planning permission was therefore refused and an Enforcement Notice was issued by the Council to regularise the breach of planning control.
The Claimant made a Planning Appeal (“Appeal A”) and an Enforcement Appeal (“Appeal B”). In respect of Appeal A, the Inspector concluded that the 2008 scheme was not a fall back option because work on the permitted scheme had not commenced before the expiry date. In respect of Appeal B, the Inspector considered whether the Notice could be varied in accordance with the 2008 scheme. However, the errors in the scaling of plans submitted led the Inspector to conclude that this would not be an appropriate resolution as the recipient of the Notice would not know how to comply.
The Claimant put forward two grounds for challenge:
1)That the Inspector’s decision to dismiss both Appeals was unlawful as he had misdirected as to the fall-back position in regards to the 2008 permission as this had been lawfully implemented. The Claimant argued that the Inspector cannot look further than beyond the point of an action that implemented the planning permission; and
2)The Inspector’s decision to dismiss the Enforcement Appeal was unlawful because he decided the Notice was valid and not a nullity. This it was submitted was also a misdirection.
Ground 1 - It was held that the Inspector following the Commercial Land case had not erred in his application of the law. As a result the Claimant’s assertion that the 2008 permission was lawfully implemented by the removal of the extension, failed. The Judge held that the inspector’s conclusion that there was a sufficiently substantial difference between the as built scheme and the permitted scheme could not be characterised as irrational.
Ground 2 – The Claimant asserted that the Enforcement Notice was a nullity as it failed to make out reasons for issuing the notice as the Council’s reasoning changed slightly “to reflect its current position”. The Respondent referred to the Miller-Mead case which states that a recipient “must find from the four corners of the document exactly what he is required to do or abstain from doing”. The Inspector considered this case and the fact that it was “not defective on its face or hopelessly ambiguous or uncertain”. It was held that the Inspector was entitled using his planning judgement to accept the Council’s position that the majority of its reasons were unaffected by the scaling error.
The S.288 Application was refused and the Appeal did not establish any error in law on the part of the Inspector and it was dismissed.
The effect of this decision is a warning to those wishing to implement planning permission by carrying out demolition that development which is materially different from permission granted may not implement planning permission – even if the development is completed some time after the required time period.
The decision handed down is also interesting because it confirms that even in the event the Local Authority makes a mistake in the reasons for issuing the notice, this is not always fatal. In this case the reasons on the face of the notice remained the same despite the facts underlying the decision to take enforcement action, having changed.
Ivy Legal Limited