Hot off the press this month is this very recent judgment from the fountain pen of Mr Justice Pepperall on the limits of powers to grant permission under ground (a).  

The appeal decision itself can be found at 3219678/79/80 and is worth a read to better understand the merits. Owners of an Italian restaurant in a period country building were granted permission to build a period-ish sun room with a flat roof. They built a glass and aluminium one with a sloping roof instead, complete with canopy projection (and pillars too, very Roman…)

They applied for permission to retain and were refused. The refusal was upheld on appeal. The council enforced against the operational development and required demolition. The enforcement notice was appealed on grounds (a), (f) and (g). The inspector made short work of the ground (a) appeal. This was not particularly surprising given the previous appeal decision, the location of the restaurant in the Green Belt and in a Conservation Area, and the location of the sun room at the front of the building.

Where he erred, it seems, was in making equally short work of 3 of the 4 alternative schemes put forward under ground (f) but considered under ground (a) which involved (1) a flat glazed roof, (2) partial reversion to the permission (now expired) and (3) complete removal of the sun room with bifold doors to fill in the resulting hole in the wall of the main building. As these all involved new works, they were not, said the inspector, part of the matters enforced against and therefore outside the scope of his power to grant permission under s177.

Readers will remember that the power to grant permission under ground (a) and the deemed application is for the “whole or any part” of the matters specified in the notice as constituting the breach in planning control. LPAs will routinely suggest that alternative schemes put forward at appeal are not part of the matters enforced against and can only be considered within a separate planning application. The approach in cases such as Tapecrown , Moore and Ahmed is to give a wide interpretation to this power. In Ahmed, for instance, the court decided that a three storey building with a butterfly roof could have been “part of” the four storey flat roofed building which was enforced against. Ioannou (three flat alternative scheme not “part of” the five flat scheme enforced against) was a reminder of the statutory limitation, and also of the peril that can come from well-meaning underenforcement.  

But Ioannou was also a reminder that whether an alternative scheme was “part of” the scheme enforced against was a matter of planning judgement. In Bhandal, the inspector simply dismissed the alternatives as outside the scope of ground (a) because they involved new works, without making clear that this was his planning judgement. LPA ground (f) appeal statements will typically argue that the extent of new development work required to achieve the proposal is such that such development requires planning permission in its own right, which planning permission is outside the scope of the appeal. The Bhandal case is a reminder that it is a matter of extent, in other words a planning judgement; it is not the case that any new work creates an alternative scheme. 

To be fair to the inspector, it seems likely that his reasoning was simply shorthand for a planning judgement that the amount of work involved in the alternative schemes (new roofs in 2 cases, new windows in the other) was too great. And that he used shorthand because the alternative schemes were clearly unacceptable. Unfortunately, the decision was not put it in quite those words. Had it been, it seems likely the appeal decision could not have been successfully challenged.

The judge was also influenced it seems by the interaction of ground (a) with the ability to decline a planning application under s70C. This is odd as there is no mention of 70C having been used in this case. The judge was concerned that if a narrow interpretation is taken of the power to grant permission under ground (a), a similarly narrow application of s70C would be needed in order to ensure that all applicants get at least one chance of having the merits of their application considered. That seems a strange concern as a narrow appeal decision on ground (a) would itself provide ammunition against a 70C rejection of a subsequent planning application.   

The matter has been referred back to PINS. Given the history, it seems difficult to see that a different decision will be reached but perhaps it will be differently worded this time.

Where does this leave those drafting notices? The starting point must remain that notices should usually seek remedy the breach of planning control fully because the of the risk of underenforcement and creation of unconditioned permissions under s173(11); if inspectors grant something different on appeal, so be it. But those drafting appeal statements must remember to make submissions on the extent of any new work involved in alternative schemes proposed by appellants.