The CoA on planning enforcement

Richard Honey analyses a significant Court of Appeal case on planning enforcement notices.

The first issue in the Court of Appeal case of Koumis v SSCLG [2014] EWCA Civ 1723 concerned the identification of a plan referred to in a planning permission as showing the development which had been permitted, where there were a number of different plans with the reference number cited. The Court held that this was a factual issue and that the inspector was allowed to consider extrinsic evidence in deciding which plan was the plan referred to in the permission (para 46).

The second issue concerned an argument that a variation made to an enforcement notice, after it had been upheld by the inspector, under s173A TCPA 1990 rendered the enforcement notice a nullity. The Court held that the legal flaw introduced by the variation was not apparent on the face of the enforcement notice (para 78).

The Court went on to say: “the Miller Mead approach to nullity should be confined to those cases where the failure to comply with the statutory requirements in section 173 is apparent on the face of the enforcement notice itself (as varied under section 173A)” (para 80)

“This [enforcement] notice (as varied on 4 May 2012) did not fail to comply with the statutory requirements on its face. The fact that it was defective could only be ascertained by reference to the extrinsic evidence as to the progress of the appeal proceedings.” (para 81)

“As a matter of first impression, a Local Planning Authority that erroneously issues a notice which fails to achieve its desired statutory purpose ought, unless there is very good reason to the contrary, to be able to withdraw that defective notice and to replace it with a notice which does achieve its statutory purpose as soon as it recognises its error without having to wait for judicial review proceedings to be commenced to quash its admittedly erroneous first decision.” (para 86)

“It is plain that there may be a number of variation notices pursued under section 173A(2). Power to vary may be exercised whether or not the notice has taken effect. If a defective variation notice has been issued, there seems to be no sensible reason why the Local Planning Authority should not be entitled to withdraw the defective notice and replace it with a valid variation notice without having to wait for the first defective notice to be quashed by way of judicial review.” (para 88)

“Rendering a valid enforcement notice a nullity could not sensibly be described as a relaxation of one of its requirements. A notice that does that is simply out with the scope of the Local Planning Authority's powers under section 173A.” (para 90)

The Court also endorsed the approach of a local planning authority using s173A to vary an enforcement notice upheld by a planning inspector to overcome errors in varying an enforcement notice on appeal which are alleged in s289 proceedings (para 42). 

Richard Honey is a barrister at Francis Taylor Building. He appeared for the successful respondent Secretary of State, instructed by the Treasury Solicitor.