England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE OUSELEY
CO/3604/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st October 2014

Lord Justice Sullivan:

Introduction

1. This is the Secretary of State's appeal against the order dated 16^th December 2013 of Ouseley J allowing Mr. Ioannou's appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against the decision of an Inspector dated 12^th March 2012 dismissing Mr. Ioannou's appeal under section 174 of the Act against an enforcement notice issued by the London Borough of Enfield on 17^th November 2010 in respect of the unauthorised conversion of a single family dwelling house, 15 Hamilton Avenue, London N9 7PP, into five self-contained flats.

Factual background

2. The factual background is described in some detail in the judgment of Ouseley J [2013] EWHC 3945 (Admin). In summary, Mr. Ioannou appealed against the enforcement notice on four of the grounds in subsection 174(2): grounds (a), (d), (f) and (g). The Inspector dismissed the appeal on the grounds (a), (d) and (f), but allowed the appeal on ground (g), and extended the time for compliance with the notice from two to six months. Much of the Inspector's decision is concerned with the ground (d) appeal. Permission to appeal against the Inspector's decision to dismiss the ground (d) appeal was refused by the High Court.
3. At the enquiry before the Inspector it was submitted on behalf of Mr. Ioannou that the ground (a) appeal should be allowed, and planning permission should be granted for either (i) the five self- contained flats; or (ii) an alternative, three flats scheme, which the Council's witness agreed under cross examination would be preferable to Mr. Ioannou's fall-back position – that if he was required to reinstate No. 15 as a single dwelling house he would change its use into a house in multiple occupation (HMO), which he would be entitled to do as permitted development.
4. The Inspector rejected both of those arguments. In respect of submission (i) he concluded:

"that the notice works have had a most damaging impact on the living conditions of the occupants of the residential units. Planning permission should be withheld." (paragraph 49 of the decision)

There has been no challenge to that conclusion.

5. In respect of submission (ii) the Inspector said:

"A number of plans were tabled at the Inquiry showing alternative layouts and different numbers of flats for the appeal property. But it is the notice works, rather than these other schemes, which I must consider under this ground." (paragraph 43 of the decision).

5. The Inspector also rejected a submission that he could have varied the steps required to be taken by the notice under ground (f), so as to enable the three flats scheme to be implemented. The Inspector dealt with this submission in paragraph 56 of his decision, as follows:

"In reaching this conclusion I have considered the relevance of the alternative plans already referred to in ground (a) above. The changes suggested by these schemes are not lesser requirements as such and do not directly relate to the allegations the subject of this appeal."

6. When dealing with the ground (g) appeal the Inspector, having noted the parties' agreement that six months would be a reasonable time for compliance, said in paragraph 59 of his decision:

"Although I was not able to grant planning permission for the 3 flats scheme, described in my paragraph 52 above, it is clear that this is the Council's and my preferred option. The extended period for compliance will give time for the Appellant to explore this alternative with the Council and make any appropriate planning application. Bearing in mind the discretion given to the Local Planning Authority to extend any period for compliance, by section 173A of the Act, 6 months should be sufficient to gauge whether agreement on such an alternative scheme is likely."

7. Before Ouseley J, Mr. Wills submitted that the Inspector had erred in concluding that he did not have power to allow the ground (a) appeal and grant permission for the three flats scheme. In the alternative, he submitted that the Inspector had erred in concluding that he did not have power to vary the steps required for compliance with the notice under ground (f), so as to enable the three flats scheme to be effected by virtue of the combined effect of taking those steps (as varied) and section 173(11) which would treat that which remained as having been granted planning permission by virtue of section 73A of the 1990 Act.
8. Ouseley J set out the relevant statutory provisions in paragraphs 17-22 of the judgment. The critical provisions in respect of the ground (a) appeal are as follows:

(i) the requirement in subsection 173(1) that an enforcement notice shall state

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

(ii) subsection 174(2) which provides that an appeal against an enforcement notice may be brought on the ground

"(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted….";

(iii) subsection 177(5) which provides that where an appeal has been made under ground (a) (above), the appellant

"shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control";

(iv) subsection 177 (1) which provides that

"On the determination of an appeal under section 174, the Secretary of State may –

(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates"; and

(v) subsection 177(2) which provides that

"In considering whether to grant planning permission under subsection (1), the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject matter of the enforcement notice, and to any other material considerations."

9. The critical provisions in respect of the ground (f) appeal are:

(i) subsection 173(3) which provides that an enforcement notice

"shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes";

(ii) subsection 173(4) which states that those purposes are either remedying the breach or

"(b) remedying any injury to amenity which has been caused by the breach";

(iii) ground (f) in subsection 174(2) which enables an appellant to appeal against an enforcement notice on the ground

"(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach";

(iv) subsection 176(1)(b) which enables the Secretary of State to vary the terms of an enforcement notice;

(v) subsection 176(2A) which requires the Secretary of State to give any directions necessary to give effect to his determination on the appeal;

(vi) subsection 173(11) which provides that

"(11) Where –

(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities."; and

(vii) subsection 73A(1) which provides that

"(1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application."

The judgment

10. Ouseley J rejected Mr. Wills' submission that the Inspector had power to allow the appeal on ground (a) and grant planning permission for the three unit scheme. Mr. Wills did not challenge that conclusion by way of a Respondent's Notice. He was right not to do so. Both the ground (a) appeal and the deemed application for planning permission under subsection 177(5) are tied to the breach of planning control alleged in the enforcement notice. This is mirrored by the power to grant planning permission under subsection 177(1) which is limited to a power to grant permission in relation to the whole or any part of those matters. There is no challenge to Ouseley J's conclusion in paragraph 37 of his judgment that:

"Taking the ground (a) appeal and the deemed planning application by themselves, the Inspector was bound to dismiss the appeal as a matter of his statutory powers. It is clear that something other than the grant of permission for all or part of the matters alleged in the enforcement notice to constitute the breach of planning control would be required to achieve the three flat scheme."

11. Ouseley J accepted Mr. Wills' submission that the Inspector had power to enable the three unit scheme to be implemented by allowing the ground (f) appeal and varying the steps required for compliance with the notice, and leaving that which remained after those steps had been carried out to be treated as having been granted retrospective planning permission under section 73A by virtue of subsection 173(11). In paragraph 38 of the judgment Ouseley J said (in part):

"It was accepted by Mr Wills that the power to vary the requirements of the notice under s173(4)(a) by making the development comply with any planning permission granted in respect of the land, by discontinuing any use or restoring the land to its previous condition, could not assist. The only relevant power would be to vary the notice so that the new steps required were those remedying "any injury to amenity which has been caused by the breach"; s173(4)(b)."

12. In paragraph 41 Ouseley J said that:

"The first question is whether the Inspector considered applying s173(4)(b). If he did not do so, he would have failed to consider part of the powers which might have been available to him to bring about what all parties seemed to have thought was the best solution, which was to bring about the three flat scheme by somehow imposing it through the requirements of the notice. The answer lies in what he said in paragraphs 54 and 56. He appears to have adopted the same approach to his powers on the ground (f) appeal as he did on the ground (a) appeal/deemed application. That is, the steps required had to remedy the matters alleged to constitute the breach of planning control. The steps required to bring about the three flat scheme did not and could not be made to do so. He reached the conclusion he did as a result of the view he took of the extent of his powers, which is why he extended time for compliance to enable a planning application for the three flat scheme to be made to London Borough of Enfield. He confined his use of his powers of variation to those which would achieve the result in s173(4)(a). If his powers were so confined, then his decision would undoubtedly have been right. I do not see, however, any consideration of the use of the power in s173(4)(b)."

13. Having concluded that the Inspector ought to have considered "whether the power in s 173(4)(b) would be capable of leading to the three flat scheme", and did not do so (paragraph 43), Ouseley J next considered the question:

"Whether the Inspector had asked himself as a matter of fact and degree under either ground (a)/deemed application or ground (f) whether the three flat scheme was substantially different from the five flats actually developed."

He concluded that on a fair reading of the Inspector's decision he did not ask himself that question (paragraph 44); and was not prepared to admit a witness statement from the Inspector in which the Inspector explained what he had in mind in certain paragraphs of his decision, including paragraph 56 (see paragraph 6 above).

14. Applying the Wheatcroft principle (see paragraph 16 below) Ouseley J said in paragraph 47 that the question was "whether the permission which would be granted is significantly different from rather than essentially the same as that originally applied for." He answered that question in paragraphs 48 and 49:

"48. I am not prepared to hold that only one view was possible of the issue of fact and degree such that any reasonable Inspector would have been bound to conclude that the three flat scheme was too different from the five flats to be brought about through variations to the steps required by the notice, and by planning permission on the deemed application or under s173(11) for the larger flat, or other parts of the works which had been undertaken. Nor am I prepared to hold that any reasonable Inspector would have been bound to conclude that the differences were not substantial, and that as there were no third party objections even to the five flats, and the changes were all internal, there was no need to be concerned about consultation. It is certainly more than an immaterial variation to the application. It is an application for a clearly different planning permission in the context of the deemed application.

49. It therefore follows that a relevant power, which could bring about the three flat scheme has not been considered. It could have led to the appeal being decided differently."

15. In Bernard Wheatcroft v Secretary of State for the Environment [1982] 43 P & CR 233, Forbes J decided that conditions can be imposed upon a grant of planning permission which cut down, or reduce the development for which permission was sought, provided the effect of the conditional planning permission is not to allow development which is in substance not that which was applied for: see pp 239 and 241.
16. In response to Mr. Wills' submissions on the ground (a) appeal Ouseley J had concluded, correctly in my judgment, that:

"The Wheatcroft principle has no application to ground (a) or to the deemed application in the light of the clear wording of section 177(1)(a)."

Mr. Wills did not challenge this conclusion of the judge, and he accepted that it necessarily followed that the judge's references to ground (a) and/or the deemed application in paragraphs 43, 44 and 48 of the judgment (see paragraphs 14 and 15 above) were erroneous.

The appeal

17. The agreed starting point in this appeal is, therefore, that the ground (a) appeal, the deemed application under subsection 177(5), and the power to grant permission under section 177(1) are of no assistance to the Respondent. The sole question is whether the Inspector erred in concluding that he did not have power to enable the implementation of the three flats scheme by allowing the appeal under ground (f), varying the steps required by the notice, and thereby enabling what remained after compliance with those requirements as varied to be treated as having been granted planning permission under section 73A by virtue of the operation of subsection 173(11).

The Secretary of State's case

18. On behalf of the Secretary of State, Mr. Banner submitted that:-

(i) The only power to grant planning permission in response to an appeal under section 174 was the power contained in subsection 177(1).

(ii) It was common ground that there was no power under subsection 177(1) to grant permission for the three flats scheme.

(iii) Subsection 173(11) was of no assistance to the Respondent because planning permission was treated by that provision as having been granted, not for any buildings or works or the carrying out of any activities, but

"in respect of development consisting of the construction of the buildings or works, or as the case may be, the carrying out of the activities" (emphasis added).

(iv) "The buildings or works" and "the activities" were those referred to in paragraph (a) of the subsection, namely those buildings or works which the enforcement notice "could have required to be removed", or any activity which the enforcement notice "could have required to cease." It followed that in order to benefit from subsection 173(11) the buildings or works, or the activities had to have been in existence when the enforcement notice was issued.

(v) At the time when the enforcement notice was issued on 17^th November 2010 there were five self contained units in No. 15. The enforcement notice could not have required either the new works which would have to be carried out in order to convert the five flats into three to be removed, or the new change of use of the property to three flats to cease. So far as the works were concerned, there was no challenge to Ouseley J's conclusion in paragraph 33 of the judgment that:

"The four flats on the ground floor could not go into two flats without internal alterations to walls, doors and facilities. Works were required in order to produce three flats, which were not part of the matters alleged to constitute a breach of planning control."

(vi) It followed that allowing the appeal under ground (f) and varying the steps required to be taken by the enforcement notice would not have resulted in a deemed permission by virtue of subsection 173(11) for the alternative three flat scheme.

(vii) Where Parliament had expressly provided for planning permission to be granted in response to an enforcement notice appeal, and had deliberately limited the scope of the ground (a) appeal, the deemed application, and any such permission to the whole or any part of the matters stated in the enforcement notice to be a breach of planning control, it would not be appropriate to sidestep that limitation by inferring the existence of a broader power under ground (f), which did not itself confer any power to grant planning permission, when considered in conjunction with subsection 173(11).

(viii) Submission (vii) (above) was supported by the fact that both the power to grant planning permission under subsection 177(1) and the local planning authority's power to issue an enforcement notice under subsection 172(1)(b) were expressly subject to an obligation to have regard to the provisions of the development plan and other material considerations. The power to allow an appeal under ground (f) was not expressly subject to that obligation, which suggested that Parliament did not intend that it should be used as a means of bringing about a planning permission (under subsection 173(11)) which could not be obtained under subsection 177(1).

Mr. Ioannou's case

19. Subject to the point mentioned in paragraph 18 (above), Mr. Wills supported the Judge's reasoning. He reminded us of the evolution of what is now paragraph (f) of subsection 174(2). Sections 15 and 16 of the Town and Country Planning Act 1968 ("the 1968 Act") introduced new provisions as to enforcement notices into the Town and Country Planning Act 1962. Subsection 15(5) of the 1968 Act required an enforcement notice to specify:

"(a) the matters alleged to constitute a breach of planning control; and

(b) the steps required by the authority to be taken in order to remedy the breach…"

This was reflected in Subsection 16(1)(f), which enabled an appellant to appeal against an enforcement notice on the ground "that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control."

20. It will be seen that under the 1968 Act there was no express power for the local planning authority to "under-enforce" such as is now conferred by subsection 173(3) of the 1990 Act, under which the local planning authority may specify steps in the enforcement notice in order to achieve, wholly or partly, the purposes of remedying either the breach of planning control or any injury to amenity which has been caused by the breach. The ground (f) appeal under the 1968 Act mirrored the inflexibility of subsection 15(5)(b). An appellant could not argue that even if the required steps were necessary to remedy the breach, they were not necessary to remedy any injury to amenity which had been caused by the breach. The present ground (f) appeal enables an appellant to argue that "under-enforcement" would suffice for the purposes of remedying any injury to amenity. Another illustration of the greater flexibility in the 1990 Act is the power under subsection 177(1) to grant planning permission for the whole or any part of the matters which are stated in the enforcement notice as constituting a breach of planning control or in relation to the whole or any part of the land to which the notice relates. Under subsection 16(5) of the 1968 Act the Minister's power to grant planning permission was confined to "the development to which the enforcement notice relates…."
21. Carnwath LJ (as he then was) explained the background to the legislative changes which resulted in the greater flexibility now contained in the 1990 Act, and in the scope of the present ground (f) in particular, in paragraphs 29-33 of his judgment in Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744 [2007] 2 P & CR 7. Mr. Wills placed particular reliance on paragraph 33 of Carnwath LJ's judgment in which he summarised the position under ground (f), as follows:

"33. In short, the Inspector has wide powers to decide whether there is any solution, short of a complete remedy of the breach, which is acceptable in planning terms and amenity terms. If there is, he should be prepared to modify the requirements of the notice, and grant permission subject to conditions (or to accept a s.106 agreement, if offered). I would emphasise, however, that his primary task is to consider the proposals that have been put before him. Although he is free to suggest alternatives, it is not his duty to search around for solutions…."

22. In paragraph 34 of his judgment in Tapecrown Carnwath LJ said that the Inspector's task was to decide:

"34. … what was the appropriate solution. This required him to consider, not simply what would be necessary to bring the building into compliance with class A [of the GPDO], but more generally whether the building could be made acceptable in terms of both planning policy and amenity by any proposed modifications, supported if necessary by planning conditions."

23. Mr. Wills also placed reliance on paragraph 46 of Tapecrown in which Carnwath LJ, having observed that it was not the duty of an Inspector to make an appellant's case for him, said:

"46. On the other hand the Inspector should bear in mind that the enforcement procedure is intended to be remedial rather than punitive. If on his consideration of the submissions and in the light of the site view, it appears to him that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it. In such circumstances fairness may require him to give notice to the parties enabling them to comment on it. I would expect the Inspectorate to have an established practice for dealing with that situation efficiently and expeditiously."

While Carnwath LJ's observations in paragraph 46 of Tapecrown were obiter, they were endorsed, and formed part of the Court's reasoning in paragraph 40 of its judgment in Moore v Secretary of State for Communities and Local Government [2013] JPL 192; see Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566.

24. Mr. Wills submitted that if the ambit of the power conferred on an Inspector when dealing with a ground (f) appeal was no wider than his power in respect of a ground (a) appeal, ground (f) would be otiose. The three flats scheme was "an obvious alternative which overcame the planning difficulties" caused by the five flats scheme and it should, therefore have been considered by the Inspector under the second limb of the ground (f) appeal. The three flats scheme would remedy the injury to amenity which, on the Inspector's findings, had been caused by the five flats scheme.
25. Against this background, Mr. Wills submitted that subsection 173(11) should be interpreted purposively, so that the scope of the permission deemed to have been granted under section 73A was not confined to any buildings or works, or activities that were in existence on the subject land when the enforcement notice was issued. Applying the Wheatcroft principle, section 173(11) applied to an alternative scheme, such as the three flats scheme, which was sufficiently similar to the development which was alleged by the notice to be a breach of planning control. Any other approach to the scope of section 173(11) would, he submitted, be punitive, and would not be consistent with the remedial character of enforcement proceedings: see Tapecrown (above).

Discussion

26. Although Ouseley J referred in paragraphs 38 and 41 of his judgment (see paragraphs 12 and 13 above) to the need for the Inspector to consider the use of the power in section 173(4)(b), and his failure to do so, subsection 173(4) is directed at the local planning authority which issues the enforcement notice, and prescribes the purposes for which it may require steps to be taken by the notice. The Inspector's power to allow an appeal under the second limb of a ground (f) appeal mirrors the power conferred on the local planning authority to under-enforce conferred by subsection 173(4)(b).
27. In concluding that the Inspector should have asked himself as a matter of fact and degree under the ground (f) appeal whether the three flats scheme was "substantially different" from the five flats actually developed (paragraph 44 of the judgment) Ouseley J applied the Wheatcroft principle. In my judgment, the Wheatcroft principle had no application in the present case. There is no challenge to Ouseley J's conclusion that the principle had no application to the ground (a) appeal or to the deemed application in the light of the clear wording of section 177(1)(a): see paragraph 36 of the judgment. The power to allow an appeal under ground (f) in subsection 174(2) is not a power to grant planning permission. If planning permission is to be granted in response to an appeal under section 174 it may only be granted under section 177(1).
28. Wheatcroft has no application to any planning permission that section 173(11) treats as having been granted by virtue of section 73A because the scope of that permission is closely defined by the terms of both subsection 173(11) and subsection 73A(1) (see paragraph 10 above). Wheatcroft was concerned with an application for planning permission under (what is now) section 70 of the Act for a prospective development. Section 73A enables planning permission to be granted retrospectively "for development carried out before the date of the application." While application of the Wheatcroft principle would enable a condition or conditions to be imposed upon a grant of permission under section 73A to cut down the extent of the existing development that was granted permission, it could not authorise a grant of planning permission for development that was proposed to be carried out, such as the three flats scheme.
29. In my judgment, Mr. Wills had no satisfactory answer to Mr. Banner's submission that the only buildings, works or activities which can benefit from subsection 173(11) are those which were in existence when the enforcement notice was issued: see paragraph 19(iv) (above). The notice could not have required that which was not in existence when it was issued "to be removed", or "to cease". That submission is reinforced by the fact that the planning permission which subsection 173(11) treats as having been granted is a permission under section 73A, which relates to development which has been carried out, not development which is proposed to be carried out.
30. In Fidler v First Secretary of State [2004] EWCA Civ 1295 this Court rejected a submission that the permission which was treated as having been granted under subsection 173(11) extended to any activities which were taking place on the enforcement notice site which could have been, but were not, the subject of enforcement action. Carnwath LJ said that the draftsman of (what is now) subsection 173(11) had:

"43. [I]ntroduced the pre-condition that the activity must have been one which the particular enforcement notice could have required to cease. It is not enough that it could have been the subject of enforcement action under a differently drafted notice. As Schiemann LJ observed, an enforcement notice cannot require an activity to cease, unless it is part of the breach of planning control identified by the notice itself. Not only is this interpretation supported by the wording of the section, it also makes practical sense for all parties. It ensures that the authority does not give deemed permission by an oversight; and, for those interested in the land, it provides clarity as to what is and is not permitted."

31. Mr. Wills submitted that the question in Fidler was the extent of those buildings, works or activities which were in existence when the enforcement notice was issued which could benefit from subsection 173(11). The Court was not concerned with the issue in the present case: to what extent could an alternative scheme which would remedy the injury to amenity caused by a breach of planning control be permitted by virtue of the combined effect of allowing an appeal under ground (f) and the operation of subsection 173(11). That is true, but the wording of subsection 173(11) is clear, and Schiemann LJ's observation "that an enforcement notice cannot require an activity to cease, unless it is part of the breach of planning control identified by the notice itself" is fatal to the Respondent's case.
32. Mr. Wills urged us to adopt a purposive approach to the interpretation of subsection 173(11), but however purposive our approach it would not enable us to ignore the express terms of subsection 173(11) and section 73A. Moreover, I do not accept that a purposive approach to the interpretation of subsection 173(11) would assist the Respondent's case. I accept Mr. Banner's submission (paragraph 19(vii) above) that where Parliament has provided for planning permission to be granted in response to an appeal under section 174 against an enforcement notice, but has deliberately limited the scope of both the ground (a) appeal and the deemed application for permission to the matters stated in the enforcement notice as constituting a breach of planning control, and has limited the permission that may be granted under section 177(1) to the whole or any part of those matters, it would not be appropriate to sidestep that limitation by adopting an interpretation of subsection 173(11) which would, when taken in conjunction with a successful ground (f) appeal, have the effect of granting a planning permission for matters other than those specified in the notice as constituting the breach of planning control. That conclusion is supported by the role of the development plan in the decision–making process: see paragraph 19(viii) above.
33. I recognise that Carnwath LJ's observations in Tapecrown (paragraphs 23-25 above) might suggest that an Inspector's powers when considering an appeal under ground (f) are not subject to any such limitation, in particular, the following passage in paragraph 46:

"If…. it appears to [the Inspector] that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it".

34. The passages relied upon by Mr. Wills in the judgments in these three cases must be understood in the context of the factual and legal issues that were in dispute in those cases. The judgments are a response to those issues, they are not to be applied as though they were enactments of universal application. In Ahmed the question was whether the "obvious alternative", the 2005 scheme, could be regarded as "part" of the matters stated in the enforcement notice as constituting a breach of planning control. Richards LJ said in paragraph 32 of Ahmed that:

"The question of a grant of permission going beyond the terms of the notice does not arise."

35. In paragraph 40 of Moore the point being made by the Court was that if there was an "obvious alternative" which the Inspector should have considered it did not matter that the appellant had put her case under ground (b) rather than ground (f). The Court concluded that there was, in fact, no "obvious alternative" (paragraph 41).
36. In Tapecrown the matter was remitted for reconsideration by the Secretary of State because the Inspector's reasoning was inadequate in that he failed to consider whether the building and hardstanding which were the subject of the enforcement notice could be made acceptable in planning terms by (i) reducing the extent of the hardstanding, and (ii) blocking up the windows in the building. It appears to have been common ground that modifying the notice so as to require both of these steps to be taken would have been within the scope of the Inspector's powers under ground (f), and the principal issue was the adequacy of his reasoning on this topic. Carnwath LJ was not establishing a free-standing "obvious alternative" test as a replacement for to the express statutory limitations imposed by subsections 177(1) and 173(11) upon the nature and extent of the planning permissions that may be, or be treated as having been, granted in response to appeals under section 174. The "obvious alternatives" which he had in mind were those "obvious alternatives" which (it was agreed in that case) would fall within the scope of a ground (f) appeal.
37. It is unnecessary to adopt a strained interpretation of subsection 173(11) in order to ensure that enforcement proceedings retain their remedial character. If, as in the present case, an alternative scheme is put forward which is not part of the matters stated in the enforcement notice as constituting a breach of planning control, but which the Inspector considers may well be acceptable in planning terms, he can follow the course which the Inspector adopted in the present case: allow the appeal under ground (g) and extend the period for compliance with the notice so that the planning merits of the alternative can be properly explored: see paragraph 7 (above). Local planning authorities usually issue enforcement notices as a last resort when persuasion and negotiation with the landowner has failed. It is open to a landowner who wishes to obtain planning permission for such an alternative scheme to apply for planning permission for that scheme at any time, whether before or after an enforcement notice has been issued. The local planning authority's power in section 70C to decline to determine applications for planning permission made after an enforcement notice has been issued applies only if granting the permission would involve granting permission "in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control."
38. I do not accept Mr. Wills' submission that this approach to the ambit of ground (f) renders that ground of appeal otiose. In its earlier form, under the 1968 Act, ground (f) was clearly much narrower than ground (a): it was not concerned with the planning merits of the matters alleged to constitute a breach of planning control, a question of planning judgment, but with what was essentially a factual question – what steps were necessary to remedy that breach: see paragraph 20 (above). The inclusion of the second limb in ground (f) – that even if they do not remedy the breach, less onerous steps will suffice because they will remedy any injury to amenity caused by the breach - means that deciding an appeal under ground (f) may well involve an element of planning judgment, which is bound to overlap to a certain extent with the Inspector's judgment as to the wider planning merits under ground (a). That there is now a degree of overlap between the two grounds, (a) and (f), is recognised in the authorities relied upon by Mr. Wills: Tapecrown, Moore and Ahmed. It does not follow that ground (f) is otiose merely because there is now some overlap between the two grounds, in that injury to amenity is relevant under both grounds; nor does it follow that ground (f) is otiose because it cannot be used in conjunction with subsection 173(11) to secure for an alternative scheme a planning permission which is unobtainable under section 177(1).

Conclusion

39. For the reasons set out above, the Inspector's conclusion that he did not have power to consider the three flats scheme under the ground (f) appeal was correct. Ouseley J's judgment to the contrary must be set aside, and the Inspector's decision restored.
40. In these circumstances it is unnecessary to consider the Secretary of State's second ground of appeal, in which Mr. Banner submitted that Ouseley J was wrong not to have admitted the Inspector's witness statement. I would merely endorse Ouseley J's observation in paragraph 51 of the judgment:

"I would strongly discourage the use of witness statements from Inspectors in the way deployed here. The statutory obligation to give a decision with reasons must be fulfilled by the decision letter, which then becomes the basis of challenge. There is no provision for a second letter or for a challenge to it. A witness statement should not be a backdoor second decision letter. It may reveal further errors of law…."

Lady Justice Rafferty:

41. I agree.

Lord Justice Lloyd Jones:

42. I also agree.