The death of Panayi
Roderick Morton • 27 April 2021
In July 2019, we reported on the rather unhelpful case of R v Panayi [2019] EWCA Crim 413. That case concerned a POCA confiscation application made by a council which successfully prosecuted a planning offender for non-compliance with an enforcement notice. Not unusually, the council had drafted the summons to refer to non-compliance on the single day on which their site visit was undertaken, that being the date on which they had evidence of the offence. The Panayi court said that the benefit confiscated could therefore only be the rental income for that single day.
Since then, a number of cases have nibbled away at Panayi, notably R v Roth and Ceredigion CC v Robinson . The mortal blow seems now to have arrived in the shape of Barnet v Kamyab.
Mr Kamyab converted a 5 bedroom house to 9 flats. An enforcement notice was issued and upheld on appeal. A compliance visit in 2014 established that there had been no compliance. Mr Kamyab was duly prosecuted and convicted in February 2015. His appeal was dismissed and the case went to the Crown Court for confiscation. The summons alleged failure to comply “on or before 4 February 2014” (Payani was “on or about”). Mr Kamyab relied on Panayi and offered £58 confiscation. The Crown Court judge agreed albeit perhaps reluctantly. The matter was referred to the Court of Appeal.
The Court of Appeal followed R v Roth. As worded, the summons in Kamyab was not a single day offence, it decided. Moreover, it was the very nature of the s179 TCPA 1990 offence that it was a single offence committed over a period. It would therefore take a lot to conclude it was a single day offence, almost no matter how it was worded.
The Court was asked to say that Panayi was now bad law. They stopped short of doing so but noted
“We certainly agree that, where it can be distinguished, as in Roth and the present case, it should not be applied. A decision on whether it is rightly decided but confined to its own facts, or decided per incuriam by reason of the apparent absence of citation of Hodgetts, Ali and s. 8 of POCA, must await a case where it cannot be distinguished. We hope that no such case will arise…”
The court did note, however, that planning enforcement offences should normally be drafted as failure to comply between two specified dates, the first being the date compliance was due and the later one being the date of the summons. This would avoid any issues with confiscation. Planning enforcement lawyers should take note!
Pity the poor Lords Justices of the Court of Appeal though. Normally, a successful appeal would result in a full decision from the Court of Appeal or, if necessary, the remission of the matter back to the lower courts. The way in which this case had been heard in the Crown Court as a preliminary issue meant that neither of these options was available. It could not be remitted and the Court of Appeal had no information on the benefit received by Mr Kamyab and his available assets to reach a conclusion itself. Normally, the appeal court hears appeals on points of law. These tend to be nicely packaged, with agreed facts, a finite list of issues and well advocated and interesting legal points to think about. Not so here. The Court of Appeal judges were faced with the thought of having to hold a 3-day confiscation hearing themselves, complete with witnesses, dubious information and the kind of minutiae normally weeded out in the lower courts. The thought was deeply unpalatable to them! But it was the only way forward and they agreed “on this one occasion only” making clear that the problem better not recur! As they put it:
“We have said in the clearest terms that disposing of confiscation proceedings on a preliminary issue of law is, as the powers of this court currently stand, a dangerous course and one which we do not expect to see again.”
Titchfield Festival Theatre v SSHCLG and Fareham BC [2025] EWHC 883 (Admin)
Paton v SSLUHC and Maldon DC [2025] EWHC 245 (Admin)
Amber Valley BC v Haytop Country Park Ltd [2024] UKUT 237 (LC)
Jones vs Isle of Anglesey County Council and Another [2024][ EWHC 2582] (Admin)
originally written for Scottish Planner
Warwick DC v SSLUGC and others [2022] EWHC 2145 (Admin)
LB Richmond upon Thames v the King oao Owolabi Ariyo [2024] EXCA Civ 960
LB Lambeth v SSLUHC [2024] EWHC 1391
LB Barking and Dagenham v Zannat Ara Aziz [2024] EWHC 1212 (Admin)
Caldwell and Timberstore v SSLUHC [2024] EWCA Civ 467
Ward v SSLUHC and Basildon District Council [2024] EWHC 676 (Admin)
R oao Lisle-Mainwaring v RB Kensington and Chelsea and another
Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin)
s172ZA TCPA 1990
Ariyo v Richmond Upon Thames LBC [2023] EWHC 2278
Kazalbash v SSLUHC and Hillingdon [2023] EWCA Civ 904
Removal of facilitating development
Pathfield Estates Ltd v LB Haringey [2023] EWHC 1790 (Admin)
Given its portrayal of the planning system so far, it is almost a given that season 3 of Clarkson’s Farm will not accurately present the detail of the Diddly Squat appeal decision. Here is our take. The decision is here. In summary, the LPA won almost all of the enforcement points. But simply being Jeremy Clarkson is apparently a material consideration which alters the planning balance! While he is popular, his celebrity is such that his farm shop will create significant problems beyond those of an ordinary farm shop and the inspector decided that these are problems which have already been accepted in granting his existing permission. Fewer of the harms to the AONB can therefore be attributed to the additional elements of the use. And these harms are outweighed by the economic benefits, benefits which are a result of his celebrity. So permission was granted for his farm shop and café and the associated parking and toilets. Clarkson’s popularity will be re-assessed in 3 years as the permission is time limited. Perhaps the inspector knows something we don’t. As viewers will know, Clarkson’s Farm operates in open countryside in an AONB. As well as agriculture, it has diversified to include a farm shop and a café in a lambing barn. The business tried to open a restaurant in a converted barn located some distance from the shop. The site is obviously used as a filming location. The business has proved popular and it now has significant parking and highway problems. The farm shop (with limited parking) has permission, the construction of the lambing barn (but not its use) has permission and there is permission for limited filming. The council enforced against the material change of use of the land to a mixed agricultural and leisure attraction use, comprising café, restaurant, gift/farm shop, parking and lavatory facilities. The notice was appealed. The appellant also sought (and was refused) permission for additional parking, access, storage and landscaping. This appeal was heard alongside the enforcement appeal. The inspector dealt first with the planning unit. The appellant alleged that there were three separate planning units (shop, café, restaurant), with each having a separate primary use. The council had enforced against a single unit in a mixed use. The inspector took into account that the shop/café was in a different ownership to the farm and that it had its own permission. But its activities clearly spilled out of the permitted area, extending to the proposed restaurant and the wider parking areas. The restaurant used the same parking as the shop. These were fenced/walled off from the remainder of the farm. He concluded that there was a single planning unit. As for the use of that planning unit, the inspector took issue with several items listed by the council. “Gift shop” was too ambiguous; a shop is a shop. Similarly, while visitors no doubt came for the experience, the business was not a “leisure attraction”. A leisure attraction required, said the inspector, something which the customer might be expected to pay for. There was no entrance fee here, just a shop and café. (It appears that the inspector was also concerned that any permission for a “leisure attraction” would create a very wide lawful use.) Nevertheless, there were several primary uses in a single unit so the development was a mixed use, in this case a “mixed use comprising agriculture, café, restaurant, farm shop, parking, lavatory facilities.” This put paid to the ground (b) and (c) challenges. The challenge was that the restaurant was a separate planning unit. As it was in the curtilage of the lawful farm shop, the appellant said that Class R permitted a change of use to a flexible use including a restaurant. In the light of his conclusion on the planning unit, the inspector rejected this. He said he would have rejected the Class R argument anyway as the restaurant was not clearly within the curtilage of the farm shop. The remainder of the uses cited in the notice were also challenged on the grounds that they were ancillary to the lawful farm shop use and not primary uses. The inspector concluded that, as the restaurant resulted in a mixed use, there had been a material change of use so it was irrelevant whether the other items were ancillary. As an aside, viewers of the series will recall the scripted glee with which the appellant came up with the “PD loophole” for his restaurant. It is fitting, therefore, that it was the restaurant which was the primary reason the breach was upheld. The inspector nevertheless looked at the extent to which the various alleged ancillary elements (other than the restaurant) were part of the lawful use prior to the breach. This was relevant to the fallback but also to what the extent of the material change of use truly was. He identified that the question was whether any of the elements represented a change in the character of the use. The inspector found that the level or vehicle traffic and parking went far beyond that for which permission had been given. And that the lambing shed was clearly not “by any stretch of reasonableness” being used for the purpose for which it was given permission. Even the toilet facilities went beyond what would be expected for the permitted farm shop. This was not intensification, it was a material change in the character of the use. The LPA even won the merits arguments on ground (a). The number of visitors, the traffic and parking problems, the outdoor seating, catering van and toilets clearly had an adverse effect on the AONB. The parking and landscaping proposed under the s78 application would have a similar effect. This had great weight. In the end though, permission was granted for the mixed use, including the use of the lambing shed as a café and the enforced against parking and toilets. Permission was granted under the s78 appeal for altered parking, storage and landscaping. Only the restaurant was refused. The inspector found that the parking would alleviate the current parking situation and highway safety even though it would not provide a complete solution. He accepted that a number of local suppliers benefited from trading arrangements with the shop and that the shop contributed to the local economy. He accepted that diversification was to be supported. These considerations also had great weight. Key to the decision, though, was the fact that permission had been granted, not just for a farm shop, but for a celebrity’s farm shop. Even if there was no café or restaurant, the popularity of the appellant was such that people would continue to visit the shop in numbers. This reduced to moderate the harm to the AONB caused by the new elements of the use because the permitted use already resulted in significant harm. The appellant’s celebrity might wane. In which case, the weight of the considerations in favour of the development would wane. The permission granted was therefore time limited to 36 months. The decision is well reasoned and fairly logical. The inspector did not say that the character of the use already permitted varied with the identity of the user. But the result seems to imply that the harms associated with the use could vary and that the LPA had accepted them all in granting permission. Yet it is difficult to think that the LPA could successfully have imposed conditions on the farm shop based on the identity of the applicant. The result is therefore troubling.
R oao Devonhurst Investments Ltd v Luton Borough Council [2023] EWHC 978 (Admin)
Muorah v SSHCLG and Brent [2023] EWHC 285 (Admin)
Atwill v New Forest NPA [2023] EWHC 625 (Admin)
McCaffrey v Dartmoor NPA [2023] 2 WLUK 341
Welwyn Hatfield BC v SSLUHC and Kabala [2022] EWHC 3175 (Admin)