England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
JOHN LEIGHTON WILLIAMS QC
HQ09X03697

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/03/2011

Lord Justice Sullivan:

Introduction

1. This is an appeal against the order dated 28^th July 2010 of Mr. John Leighton Williams QC (sitting as a deputy High Court Judge) granting the Respondent's application for an injunction under section 187B of the Town and Country Planning Act 1990 ("the Act"). The injunction related to land at the rear of No.3 Orchard Drive, Hellesdon, Norwich ("the Land"). The injunction ordered that:

"The Appellant, whether by himself or by instructing, encouraging or permitting any other person must not:

Whether by obstruction, use of the Land or otherwise, prevent the Land being available to any person who is a resident of any of the Waterside Flats for them to use for their enjoyment in connection with their residence at the flats. For the avoidance of doubt this means they must not be obstructed from having physical access to the land for the purposes of enjoying it including (but not limited to) walking around it, sitting in it, undertake activities or games within it provided these do not amount to a nuisance to any other persons."

The Facts

2. The Waterside Flats were constructed pursuant to a planning permission ref. 91.2177 dated 14^th May 1992 ("the 1992 permission"). The development permitted by the 1992 permission was a modification of an earlier scheme which had been permitted (ref. 90.0922) on appeal by a Planning Inspector in a decision letter dated 19^th June 1991 ("the 1991 permission"). The land was included within the application site in both the 1991 and 1992 permissions.
3. Both permissions were granted subject to conditions. The relevant conditions in the 1992 permission were conditions 2 and 4:

"2. The development hereby permitted shall not be carried out otherwise than in accordance with the submitted application as amended by Drawing number 808/09 revision "B" dated April 1990 received 23^rd April 1992, Drawing number 808/29 "B" dated January 1992 received 20^th April 1992, and further amended by Drawing number 808/29 "C" dated January 1992 received 8^th May 1992.

4. The development hereby approved shall not be carried out otherwise than in accordance with conditions 2, 3, 4, 5 and 6 of [the 1991] permission …"

4. Conditions 2 and 3 in the 1991 permission provided that:

"2. no development shall take place until there has been submitted to and approved by the local planning authority a scheme of landscaping (including provision for the treatment of boundaries) which shall contain indications of all existing trees and hedgerows on the land and the details of any to be retained, together with measures for their protection in the course of development;

3. all planting, seeding or turfing comprised in the approved details of landscaping shall be carried out in the first planting and seeding seasons following the occupation of the building or the completion of the development, whichever is the sooner; and any trees or plants which within a period of 5 years from the completion of the development die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of similar size and species, unless the local planning authority gives written consent to any variation."

5. The development of the flats commenced prior to the submission of a landscaping preventing its use as an amenity area by the occupiers of the flats. scheme. When a landscaping scheme was submitted by the Appellant's agent it was not approved by the Respondent because the proposed retention of boundary hedging around the southern and western boundaries of the land would separate it from the remaining part of the development site, thereby
6. The Respondent served an enforcement notice on CA Trott (Plant Hire) Ltd, ("the Company") a company owned by the Appellant, which was carrying out the development. The enforcement notice was issued because it appeared to the Respondent that there had been a breach of planning control under section 171A(1)(b) of the Act: i.e. it was being alleged that there had been a failure to comply with a condition, not that development had been carried out without permission.
7. The breach of planning control alleged in paragraph 3 of the enforcement notice was as follows:

"The affected land is included in a planning permission for a 30 flat development (reference 91.2177) incorporating five conditions from an earlier permission (reference 90.0922) which permission and conditions are specifically referred to in permission 91.2177. This development is well advanced, occupation of part has occurred and contrary to the permission the land affected has been enclosed within the boundary of 3 Orchard Drive, Hellesdon, providing an extended garden area for that property and upon which a greenhouse and cold frame stands."

8. Paragraph 4 of the notice set out the following reasons for issuing the notice

"It appears to the Council that the above breach of planning control has occurred within the last 10 years. Because of the enclosure of the affected land within the extended garden of 3 Orchard Drive, the development which does not have permission under 91.2177 cannot be fully executed. The resultant 30 flat development is therefore deprived of a public amenity area for its benefit. Whilst a landscaping and boundary treatment scheme, referenced 1068/O1E was recently received on the 1^st February 1996 its implementation in full would not adequately address the problem. The erection of the eastern fence and planting of the beech hedge along that boundary as specified in drawing 1968/O1E will suitably separate this site from 3 Orchard Drive but there is still a need to remove the greenhouse and cold frame, and to remove the existing hedging on the southern and western boundaries to improve the amenity and visual appearance of this land within the 30 flat development. Pedestrian access into the amenity area is also currently restricted because of both the fence and hedging on the southern and western boundaries. "

9. The steps required by paragraph 5 of the notice were as follows:

"(i) Erect the eastern fence and plant the beech hedge along that eastern boundary as specified in drawing 1068/ O1E, so that the land is physically separated from the garden of 3 Orchard Drive.

(ii) Remove the existing hedge which forms the southern and western boundaries of the land, as coloured green and blue in this Notice.

(iii) Ensure that an additional pedestrian gate or walkway, wide enough for disabled wheelchair access, is erected within the southern boundary fence, coloured green in this Notice.

(iv) Remove from the land the greenhouse and cold frame, and remove any foundations, rubble and building materials associated with their removal and restore the land to lawn."

10. The company appealed against the notice on grounds (a), (f) and (g) in section 174(2) of the Act. An Inspector conducted a hearing into the appeal, at which neither the Company nor the Respondent was legally represented, on 18^th March 1997. The Inspector's decision letter is dated 28^th April 1997 (the decision letter).
11. In paragraph 4 of the decision letter the Inspector said:

"4. The allegation contained in the notice is confusing as it appears to relate to a breach of condition or conditions, but does not specify which condition is being breached or in what way. It also seems to allege a material change of use of the land, although paragraph 1 of the notice refers only to Section 171A(1)(b) of the Act, which concerns failure to comply with any condition or limitation subject to which planning permission has been granted. I therefore sought clarification on this matter at the hearing, in order to ascertain whether the notice could be corrected without injustice."

12. The Respondent accepted that the allegation was worded "imprecisely." The Respondent's complaint was that the Land had been retained as part of the rear garden of No.3 Orchard Drive and had been enclosed by a fence and hedging. It "was not an open amenity area for the benefit of the flats, as envisaged, rather it was part of a private garden area." (para.5).
13. It was contended on behalf of the Respondent that this was contrary to condition 4 of the 1992 permission, which incorporated condition 2 of the 1991 permission. The Inspector pointed out that this was incorrect. The development had commenced before any landscaping details had been provided, and when the landscaping scheme was eventually submitted it was not approved. The Inspector concluded "that the conditions which the Council are seeking to enforce are, as a matter of fact, unenforceable in this way." (para.6).
14. The Inspector continued in para. 7 of the decision letter:

"7. Whilst this error appears to render the notice void, it was agreed between the main parties that there was only one area of dispute; the landscape treatment of the boundary of the appeal site. Upon re-examination of the various conditions of the implemented planning permission, it was agreed that the enclosure of this area by hedging was not shown on Drawing No 808/29'C', dated January 1992, thus the outstanding issue could be discussed at the hearing if the notice were to be corrected so as to allege non-compliance with condition No 2 of [the 1992 permission], which requires the development to be carried out in accordance with this, and other, drawings. Such a course of action was preferable to your clients as it would obviate the possible issue of a new notice, if the present notice were to be quashed as void or invalid, and would allow the area of dispute between them and the Council to be resolved. I concur with this view and shall therefore correct the notice accordingly."

15. In paragraph 8 of the decision letter the Inspector dealt with the consequences of this agreement. The Respondent had indicated that certain aspects of the planting on the land were acceptable. When identifying those matters which were still in issue the Inspector recorded that:

"Thirdly, the Council suggested that there should be a requirement to make the area available for the enjoyment of residents of the flats, thus ensuring it remains as a part of the overall development. This was not opposed by your clients."

16. In paragraph 9, the Inspector said that he proposed to correct the requirements of the enforcement notice "in the light of these agreements and understandings." The Inspector deleted paragraphs 3 and 5 of the enforcement notice and substituted the following paragraphs:

"3. On 14 May 1992 planning permission No 91.2177 was granted for the erection of 30 flats, garages and associated works on land at the rear of 59 Low Road, Hellesdon subject to conditions including:

2. The development hereby permitted shall not be carried out otherwise than in accordance with the submitted application as amended by Drawing Number 808/09 revision "B" dated April 1990 received 23^rd April 1992, Drawing number 808/29 "B" dated January 1992 received 30^th April 1992, and further amended by Drawing number 808/29 "C" dated January 1992 8^th May 1992

This condition has not been complied with in that the land shown hatched on the attached plan has not been incorporated into the overall development site as an area to be landscaped rather it has been retained as an extended garden area to No. 3 Orchard Drive with boundary leylandii and hedging and associated post and rail fencing, on its northern, western and southern boundaries, and with the erection of a greenhouse and cold frame therein."

5.a.Within three weeks, erect a temporary close-boarded timber fence to a height of 1.8m on the eastern boundary of the site between points A and B as shown on the attached plan.

b. Within the next available planting season, plant a leylandii hedge at 0.8m centres along the eastern boundary of the site, between points A and B as shown on the attached plan, and retain that hedge, when grown, at a minimum height of 2m.

c. Within three weeks remove the greenhouse, cold frame and any associated foundations, rubble and building materials from the land and restore the affected areas to lawn.

d. Within three weeks make the site available for the enjoyment of residents of the Waterside flats."

17. Having concluded that there had been a failure to comply with condition 2 of the 1992 permission, the Inspector considered the appeal against the notice on ground (a) which, since the Company accepted the need to remove the greenhouse and cold frame from the land and had already done so, was limited to the retention of the leylandii hedging around the western and part of the southern boundary of the land. He concluded that the retention of this hedging at a maximum height of 2.5m would not significantly harm the use or character of the Waterside Flats development, allowed the appeal on ground (a) and granted planning permission on the deemed application:

"In accordance with Section 177(1)(b) of the amended Act I hereby discharge condition No 2 attached to the [1992 permission], dated 14 May 1992, granted by the Broadland District Council and I allow the appeal and grant planning permission on the application deemed to have been made under Section 177(5) of the amended Act, for the retention of the leylandii hedging on the western and southern boundaries of the site, between points C an D as shown on the attached plan, without complying with the said condition, but subject to the following new condition:

2. The development hereby permitted shall not be carried out otherwise than in accordance with the submitted application as amended by Drawing number 808/09 revision 'B' dated April 1990 received 23^rd April 1992, Drawing number 808/29 'B' dated January 1992 received 30^th April 1992, and further amended by Drawing number 808/29 'C' dated January 1992 received 8^th May 1992, save that the leylandii hedging on the western and southern boundaries of the land shown hatched black on the plan attached to this letter may be retained at a maximum height of 2.5m between points C and D."

18. There was no appeal under section 289 of the Act against the Inspector's decision.

The Statutory Framework:

19. The Respondent's application for an injunction was made under section 187B, which provides:

"(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part."

(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."

20. Section 171A defines what constitutes a breach of planning control for the purposes of the Act, as:

"(a) carrying out development without the required permission, or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted…"

21. Failure to comply with the requirements of an enforcement notice is a criminal offence (see section 179), but it is not a breach of planning control. A local planning authority may, in an appropriate case, apply for an injunction to secure compliance with the requirements of an enforcement notice, using its powers under sections 111 and 222 of the Local Government Act 1972 (the 1972 Act): see paragraphs 187B.04–187B.08 in the Encyclopaedia of Planning Law and Practice. Mr Harrison QC confirmed that the Respondent did not exercise its powers under the 1972 Act in the present case, it relied on section 187B.

The Appeal to the Court of Appeal

22. Mrs Townsend submitted that the judge had erred in four respects:

i) In concluding that there had been a breach of planning control.

ii) In concluding that the enforcement notice issued by the Respondent was not a nullity, but merely defective and therefore capable of correction by the Inspector under section 176(2) of the Act.

iii) If the notice as served was not a nullity, in concluding that the enforcement notice as corrected by the Inspector was not nullity.

iv) In the exercise of his discretion under section 187B(2) of the Act.

Ground 1

23. The Respondent did not suggest that there had been a breach of planning control falling within paragraph (a) in sub-section 171A(1). It therefore had to establish that the Appellant's failure to make the land available for the enjoyment of the residents of the Waterside Flats was a failure to comply with a condition subject to which planning permission was granted.
24. In its Claim Form seeking an injunction under section 187B the Respondent said that there had been a "breach [of] the requirements of the Town and Country Planning Act 1990 by failing to comply with requirement d) of the enforcement notice." While a failure to comply with a requirement of an enforcement notice may, in some circumstances, also amount to a failure to comply with a condition in a planning permission, it does not follow that there has been a failure to comply with a condition merely because there has been non-compliance with a requirement of an enforcement notice.
25. In the present case, the Inspector discharged the "old" condition 2 in the 1992 permission, and granted a fresh planning permission subject to a revised condition 2. Mr Harrison accepted that the Respondent was unable to rely on the discharged condition 2. He submitted that the breach of planning control which the Respondent was seeking to restrain in its application under section 187B was the Appellant's failure to comply with the Inspector's revised condition 2. That condition, so far as material, prohibited the carrying out of the Waterside Flats development otherwise than in accordance with the submitted application as amended by the three revised drawings listed in the condition.
26. We do not have a copy of the submitted application, but it was not suggested that it contained any indication that the land would be made available for the enjoyment of the residents of the flats as an amenity area, save that the land was included within the red line boundary around the application site. Only two of the three revised drawings are relevant for present purposes: the two "site layout" drawings, 808/29B and 808/29C, both dated January 1992, and both identical for present purposes. These drawings showed the position of the private access road, the flats and associated garages, parking areas and access ways, and a "new hedge" along the eastern boundary of the Land, dividing the Land from the western end of the garden of No. 3 Orchard Drive. No buildings were shown on the Land, and no fence, wall or hedge was shown around its northern, western and southern boundaries, which abut the private access road to the north and the driveway to three of the blocks of flats, and two garages, to the west and south. In addition to the new hedge along the eastern boundary of the land, the drawings show an existing hedge, brick wall and post and rail fence along other parts of the boundary of the application site, and a proposed thickening of the existing hedge along its southern boundary.
27. I have set out what is shown on the site layout drawings in some detail. What the drawings do not show is any landscape treatment for the land; presumably that information was to be supplied pursuant to condition 2 in the 1991 permission, as incorporated into the 1992 permission by condition 4 of the latter. Nor do the drawings describe the land in any way, eg as an "amenity area" or "garden". They merely show the Land as an undeveloped parcel of land bounded by the new hedge at the bottom of the garden of No. 3 Orchard Drive and the access road and driveway to three of the blocks of flats.
28. I appreciate that the Respondent would have granted the 1992 planning permission on the, not unreasonable, assumption that the land would be made available to the occupiers of the proposed flats as some form of amenity space, and can well understand its view that, in planning terms, such a use of the Land would be desirable. However, I am unable to accept Mr. Harrison's submission that that is what is required by the revised condition 2. If the Respondent had wished to ensure that the land was laid out initially as an amenity area, and was thereafter made available for the enjoyment of the occupiers of the flats, it could have imposed an appropriate condition, eg. prohibiting the occupation of the flats until the Land had been laid out as an amenity area for the occupiers of the flats, and prohibiting its use thereafter for any other purpose: see the advice now contained in Circular 11/95, The Use of Conditions in Planning Permissions.
29. I realise that the Inspector, having concluded that there had been a breach of condition 2 in the 1992 permission, further concluded that it was appropriate to impose requirement d. – "Within three weeks, make the site available for the enjoyment of The Waterside flats" – but he reached those conclusions in the following circumstances:

...i) The enforcement notice had not alleged a breach of condition 2 in the 1992 permission.

(ii) Since there had been no appeal against the enforcement notice under ground (c) in section 174(2) of the Act, the Company had accepted that a breach of planning control had occurred, even though it was far from clear what that breach might have been.

(iii) The requirements in the enforcement notice did not include a requirement that the land be made available for the enjoyment of the Waterside flats.

(iv) Requirement d. arose out of a suggestion made by the Respondent which was not opposed by the Company, during a hearing at which neither party was legally represented. In effect, it was imposed on the basis of a concession made by the Company at the hearing.

30. In these circumstances the Inspector's view that the imposition of requirement d. was appropriate is readily understandable, but it is of no assistance in determining whether the Appellant's failure to make the land available for the enjoyment of the residents of the flats is a failure to comply with the revised condition 2 imposed by the Inspector.
31. Since the revised condition 2 did not require that the land be made available for the enjoyment of the residents of the flats there was no failure to comply with that condition, and therefore no breach of planning control to be restrained by way of injunction under section 187B. It follows that the appeal succeeds on ground 1, and ground 4 does not arise.

Grounds 2 and 3

32. If my Lords agree with my conclusion on ground 1, it is strictly unnecessary to consider grounds 2 and 3, but since they were argued before us, and the issues may well arise again if the Respondent decides to seek an injunction under the 1972 Act to secure compliance with requirement d. in the enforcement notice as varied and corrected by the Inspector, I will set out my conclusions on the two remaining grounds.

Ground 2

33. The judge, citing Miller-Mead v Minister of Housing and Local Government [1963]2QB 196, said that:

"It is established law that where an enforcement notice is null and void it is of no effect and the owner or occupier need not comply with it."

The relevant passage from the judgment of Upjohn LJ at page 226 of Miller-Mead is set out in paragraph 26 of the judgment. In that passage Upjohn LJ drew a distinction between invalidity and nullity. A purported notice which was a "nullity"– so much waste paper – could simply be ignored. An enforcement notice which was merely "invalid" might be capable of correction under the power which is now to be found in section 176(1) of the Act, which provides that:

"(1) On an appeal under section 174 the Secretary of State may

(a) correct any defect, error or misdescription in the enforcement notice; or

(b) vary the terms of the enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority."

34. Both parties, in their submissions before the judge, and before us, proceeded on the basis that the distinction drawn in Miller-Mead between invalidity and nullity is still good law. That is certainly the conventional wisdom: see e.g. the notes to section 173 in the Encyclopaedia of Planning Law and Practice, and paragraph 23 of the judgment of HH Judge Wyn Williams QC (as he then was) in Payne v The National Assembly for Wales [2006] EWHC 597 (Admin), in which he observed that the decision in Miller-Mead had never been doubted, and that Upjohn LJ's analysis of the distinction between a notice which is a nullity and one which is invalid or defective but capable of correction had been followed on many occasions.
35. So it has, but for my part I am reluctant to add to the number of those occasions. It would not be appropriate to express any concluded view because the Respondent did not contend that Miller-Mead should not be followed, and it is unnecessary to resolve the point in order to determine this appeal. The observations of Upjohn LJ on page 226 were obiter: the Court concluded that the two enforcement notices in that case were capable of correction by the Minister. Miller-Mead was decided nearly 50 years ago. I would reserve for further consideration in an appropriate case whether it is still appropriate to draw a distinction between those enforcement notices which are a nullity and those which are merely invalid. I would do so for two reasons:

(i) The differences between the statutory framework which was in force in 1960 and 1961 when the enforcement notices in that case were served, and the provisions of the 1990 Act (as amended) which were in force in 1996 when the enforcement notice was served in the present case; and more importantly

(ii) The changing approach of the Courts to issues of invalidity in the field of Administrative Law, see e.g. paras 4-056 – 4-061 of De Smith's Judicial Review; and the discussion at pp. 250-253 of Wade and Forsyth's Administrative Law, which concludes that:

"The truth is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a "nullity" and "void" but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation."

36. In Miller-Mead, the Appellant had argued before the Inspector that the enforcement notices were legally defective, and the contention that they were a nullity was raised on appeal to the Divisional Court, and then on appeal from the Divisional Court to the Court of Appeal. On the assumption that it is still appropriate to draw a distinction between an enforcement notice that is a nullity and one which is merely invalid, I would accept that the recipient of an enforcement notice who does not appeal against it under section 174 may still contend in subsequent proceedings, eg. a prosecution under section 179, that the notice was a nullity. A person who appeals against an enforcement notice under section 174 and who fails to raise the issue of nullity before the Inspector may still do so on appeal to the High Court under section 289: see Payne at paragraph 15 (although it should be noted that the Respondent in that case did not argue to the contrary).
37. In the present case, the Company did not ignore the notice on the basis that it was a nullity. It appealed against the notice under section 174. At the hearing of its appeal the defects in the notice were discussed and the parties having agreed that the Inspector should correct the notice under section 176(1), he did so. There was no appeal under section 289 against the Inspector's decision.
38. Mrs Townsend submits that this is of no consequence. Section 285(1) of the Act prohibits the validity of an enforcement notice being questioned in any proceedings whatsoever except by way of appeal under section 174 on any of the grounds on which such an appeal may be brought. Those grounds assume that there is an enforcement notice, not a piece of waste paper. Under section 174 the Secretary of State has power to determine appeals on grounds (a) – (g) in subsection (2) against enforcement notices, not pieces of waste paper. If there was no enforcement notice in 1996, then the Inspector had no power to correct it under section 176(1) in 1997 and, Mrs Townsend submits, the lack of an appeal under section 289 cannot confer such a power.
39. As a matter of first impression, there is some merit in this submission. There is a difference between section 285 and section 284. The latter provides that the validity of, eg. a grant of planning permission by the Secretary of State on appeal "shall not be questioned in any legal proceedings whatsoever" other than by way of an appeal under section 288. There is no limitation, as there is in section 285, to the grounds of appeal against a refusal of planning permission under Part III of the Act. However, I accept Mr Harrison's submission that if there has been an appeal under section 174, and the Secretary of State (by his appointed Inspector) has made a decision in response to that appeal, the focus must be on the lawfulness of that later decision. If it is to be contended that the Secretary of State's decision is unlawful for any reason, because, eg. it was made in response to a notice that was not an enforcement notice for the purposes of the Act, then the challenge to the lawfulness of the Secretary of State's decision must be made under section 289 which permits a challenge "on a point of law." An application for permission to appeal under section 289 must be made within 28 days of receipt of the decision letter, although the Court has power to extend time. Even if it is said that a challenge under section 289 would be inappropriate because of the limitation in section 285, then a challenge to the unlawful decision should still be made promptly by way of judicial review.
40. The fact that the parties in the present case agreed that the enforcement notice could be corrected by the Inspector is of no consequence. What matters is that he did correct the notice, and the lawfulness of his decision to do so was not challenged in appropriate proceedings at the time. Subject to the Appellant's ground 3 (below) the notice as corrected by the Inspector is formally valid on its face, and not having been quashed it must be complied with: see R v Wicks [1998] AC 92 per Lord Hoffmann at pp. 119 B and 121 F. For these reasons I consider that, even if the distinction drawn in Miller–Mead between nullity and invalidity is still good law, it is far too late to challenge the lawfulness of the Inspector's decision.
41. Had the point been taken at the appropriate time, the Court might well have concluded, if it had applied Miller-Mead, that the enforcement notice served on the company in 1996 was a nullity. Section 173(1) required the notice to state:

"(a) the matters which appear to the local planning authority to constitute the breach of planning control; and

(b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.

(2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are."

The Act recognises that what appears to the local planning authority to be the case may not be correct. When issuing an enforcement notice the local planning authority may well not be in full possession of the facts, which may emerge only during the course of an appeal against the notice, so the fact that, eg. a local planning authority alleges in an enforcement notice a breach of the wrong condition may well be an error which is capable of correction without injustice.

42. Mrs Townsend accepted that it was not always necessary for an enforcement notice alleging a breach of planning control under section 171A(1)(b) to cite the number of the condition which appeared to the local planning authority to have been breached. There might be only one condition dealing with a particular matter, eg. the construction of an access, so that a complaint that the access had not been provided would obviously be referable to that condition. However, she submitted that in the present case the enforcement notice did not enable those on whom it was served to identify which condition (if any) in the 1992 permission was said by the Respondent to have been breached by the enclosure of the Land.
43. The notice made it clear that the Respondent was alleging that the enclosure of the land within the boundary of No. 3 Orchard Drive was a breach of planning control, that this was in some way "contrary to the [1992] permission", but it did not enable those persons served with the notice to identify the condition, or conditions, in the permission with which that enclosure was said to be in breach because on their face neither condition 2 nor condition 4 (incorporating conditions 2 – 6 of the 1991 permission) prohibited such enclosure.
44. I accept that submission. The Reasons for Issuing the Notice were of no assistance because they gave the impression that there had been development (a material change of use) without permission It is true that, following the exchange of the parties' appeal statements and after discussion at the hearing between the Inspector and the parties, it was eventually agreed that the notice was alleging a breach of condition, and that the breach was a failure to comply with condition 2 of the 1992 permission, and not a failure to comply with condition 2 of the 1991 permission as incorporated by condition 4 of the 1992 permission. However, these subsequent events do not alter the fact that, as served, the notice did not enable a recipient to identify on the face of the notice when read together with the 1991 and 1992 permissions, the condition or conditions in those permissions which it appeared to the local planning authority were not being complied with by reason of the enclosure of the Land.

Ground 3

45. If ground 2 fails because it is now too late to challenge the Inspector's decision to correct the enforcement notice, ground 3 must fail because the notice as corrected by the Inspector is perfectly clear. Mrs Townsend made two criticisms of the decision letter:

(i) That the decision was internally inconsistent because the Inspector had found that there was a breach of planning control on the basis of a failure to comply with condition 2, but had then, in the same decision letter discharged the very condition on which that breach was founded; and

(ii) That the requirement to make the land available for the enjoyment of the residents of the Waterside Flats did not make it clear whether they were to be permitted to enter on the land and use it as an amenity area.

46. I accept that the Inspector's approach in the decision letter was somewhat convoluted. It is difficult to see why the appeal was not simply allowed on ground (a), subject to conditions. However, there is no internal inconsistency in the decision letter. The Inspector found that there had been a breach of condition 2 in the 1992 permission. Whether he was right to do so may well be questionable: planting hedging does not amount to development, and condition 2 did not require any particular landscape treatment of the land. Having, rightly or wrongly, concluded that there had been a breach of condition 2 the Inspector was entitled to uphold the enforcement notice and to vary its requirements. He then considered whether planning permission should be granted for the leylandii hedge around the western and southern boundaries of the land, and having concluded that there was no objection to its retention up to a height of 2.5 m, granted planning permission to that effect, discharged the "old" condition 2 (which in his view did not permit its retention), and reimposed a revised condition 2 which did permit its retention. The fact that planning permission was subsequently granted and condition 2 discharged did not mean that there had been no breach of condition 2 prior to its discharge.
47. There is no substance in the Appellant's second criticism of the decision letter. Requirement d. must not be read in isolation. It should be interpreted in the context of the decision letter as a whole. If that is done, it is clear from paragraphs 15 and 16 that the Inspector was addressing the Respondent's concern that the hedge, even if restricted to a height of 2.5 m, would discourage "use by residents of the flats" (emphasis added) (para 15). The Inspector disagreed, and concluded that retaining the hedging at a maximum height of 2.5m "would not significantly harm the use or character of the Waterside development" (emphasis added) (para 16). Read in that context, making the Land available for the enjoyment of the residents of the flats means to make it available for use by them: ie. not obstructing their access to it.
48. In any event, these criticisms of the decision letter could, and should have been raised on an appeal to the High Court under section 289 of the Act. It is far too late to raise them in these proceedings.

Conclusion

49. I would allow the appeal on ground 1.

Lord Justice Touslon

50. I agree.

The Chancellor

51. I also agree.