England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 July 2013

Mr Benjamin Emmerson QC :

Introduction

1. This appeal raises a difficult point of construction concerning the inter-relationship between section 174 and section 177 of the Town and Country Planning Act 1990. The point is only likely to arise in a case, such as the present, in which (a) an owner has planning consent to erect a building but has exceeded the consent granted and (b) the original consent has lapsed by the time the enforcement notice is issued and (c) the enforcement notice is issued wholly or partly for the purposes of remedying a breach of planning control. In all other cases the statutory scheme provides a means by which the problem that arose in the present case can be satisfactorily resolved.
2. The essential question is whether, in the circumstances outlined, an appellant who contends that the enforcement notice imposes requirements that exceed what is necessary to remedy a breach of planning control is required to raise the lesser "fall-back" alternative in the form of an express application for the grant of retrospective planning consent pursuant to section 174(2)(a) or whether it is sufficient if the issue is raised in substance as part of an appeal against excessive enforcement under section 174(2)(f).

The planning history

3. The facts can be shortly stated. On 7 June 2005 planning permission was granted on appeal for the demolition of an existing property at 103 to 105 Stoke Newington High Street, London N16, and the erection of a three storey building with a butterfly roof, comprising a retail unit on the ground floor and six flats on the two upper floors. The terms of the consent required the development to begin within five years of the date of the decision. The consent therefore expired on 7 June 2010.
4. Construction began in 2007 and was completed during 2009. However, the building that was erected differed in material respects from the approved plans. It was constructed with four storeys and a flat roof to provide three levels of accommodation above the ground floor retail unit, thereby affording space for the construction of an additional flat.
5. An application for retrospective permission to regularise the development was refused by the local planning authority, the London Borough of Hackney, on 20 January 2010. On 3 September 2010 Hackney issued an enforcement notice under sections 171A(1)(a) and 172(1) of the 1990 Act requiring the permanent and complete removal of the whole of the unauthorised building, the restoration of the relevant parts of the previous building to their position before the unauthorised development was carried out, and the removal of all waste, materials, equipment and debris. The notice was to take effect on 3 November 2010 and provided three months for compliance.
6. The Appellant did not dispute the unauthorised development. However he appealed against the enforcement notice under section 174 of the 1990 Act on a number of grounds, only two of which are material to the present appeal. First, he appealed under section 174(2)(f) on the ground that the steps that were required to be taken by the notice (namely the demolition of the entire building) exceeded that which was required to "remedy the breach of planning control". The terms in which he framed his appeal are of some importance for reasons that will become apparent. In his statement of case under section 174(2)(f) the appellant submitted that the principal considerations which underlay the Secretary of State's decision to grant planning consent in 2005 remained valid since there had been no material changes in the local development plan which would give grounds to reconsider the merits of the Inspector's decision. He therefore submitted that "the scheme that was approved in 2005 would still have been acceptable in planning terms at the time the enforcement notice was issued". The Inspector's attention was drawn to the guidance in PPG18 to the effect that "Enforcement action should always be commensurate with the breach of planning control to which it relates". The appellant submitted that "in light of the fact that the approved scheme was achievable by modification of the development, the LPA's requirement that the whole of the three storey development be removed was unnecessary and punitive and amounts to over-enforcement". The submission concluded:

"The appellant would contend that clearly all that was required to make the development 'acceptable on planning grounds' was for it to be modified to comply with the design of the approved scheme; not, as stated in the notice, the removal of the whole of the three storey building."

7. He also appealed under section 174(2)(a). This provides, so far as material, that an appeal may be brought on the ground "that, in respect of any breach of planning control that may be constituted by the matters stated in the notice, planning permission ought to be granted". His statement of case on this ground related the history, and referred to the conclusions of the Inspector in 2005 when granting consent on appeal. It then continued:

"Based on the inspector's comments, the scheme that was approved on appeal in 2005 was clearly acceptable in planning terms. As the local plan has not been amended since 2005 in any manner that would now undermine the decision of the inspector in 2005, it is deemed that the approved development would therefore still be acceptable in planning terms."

8. Taking the 2005 consent as his starting point, the remainder of the appellant's submissions on this ground then focussed upon the elements of the development (as built) that differed from the scheme (as approved in 2005) and set out arguments in support of the appellant's contention that the Secretary of State should give consent under section 177(1)(a) for the building as it had in fact been erected. The appellant's submissions under section 174(2)(a) were construed by Hackney and by the Inspector as a submission that retrospective consent should be granted for the building as constructed. Neither addressed the alternative possibility that retrospective consent could or should be granted so as to authorise the development plan that had received consent in 2005, and to amend the notice so as to require the appellant to effect changes to the building in order to conform to the plans that were the subject of the 2005 consent. The relevant part of the appellant's statement of case did not in terms ask for limited retrospective consent for the construction of a building in accordance with the terms of the 2005 permission. As I have already pointed out, however, the appellant did clearly and expressly advance the submission under the section 174(2)(f) ground that restoration of the building to conform to the 2005 consent was all that was required to remedy the breach of planning control, and the point was at least adverted to in connection with the submissions made under section 174(2)(a) (see paragraph 7 above).

The Inspector's decision

9. In a decision letter dated 31 March 2011 the Inspector appointed by the Secretary of State dismissed the appeal. As regards the submission made under section 174(2)(f) he found that since the enforcement notice was directed to remedying the breach of planning control, and not solely to remedying the injury to amenity caused by the breach, and since the 2005 consent had lapsed on 7 June 2010, it followed that he had no power to allow an appeal on the grounds of over-enforcement by varying the notice so as to require the partial demolition of the building and its re-modelling to conform to the terms of the 2005 consent. His reasoning (at paragraphs 28 to 30 of the decision letter) was in these terms:

"28. The notice requires removal of the building in its entirety and the restoration of the relevant parts of the building to their position before the unauthorised development was carried out. I acknowledge that an alteration to the building which resulted in it complying with the application that was previously granted might be sufficient to remedy the injury to amenity. It would be for the Council to consider a fresh application for this, or for an alternative scheme, in the first instance. However the powers available to me under section 176(1) of the Act as amended do not allow me to turn a notice which is intended to rectify a breach of planning control into something less.

29. As matters stand there is no extant planning permission, the previous permission having expired, and no alternative permission having been granted. There is no planning permission for the building which now stands on the site, or any fallback position which can be implemented.

30. The Council has made it clear that the purpose of the notice is to rectify the breach of planning control rather than to remedy the injury to amenity. In the circumstances, where there is no extant planning permission which can be implemented, the breach of control can only be rectified by the removal of the building as a whole and the restoration of the relevant parts of the building to their position before the unauthorised development was carried out. There are no lesser steps available to the appellant that would allow this to be achieved."

10. The Inspector also considered, and rejected, the Appellant's appeal under section 174(2)(a) on the ground that the building, as constructed, did not meet the requirements of the local development plan. He therefore refused to grant retrospective planning consent for the building. He did not treat the appeal under section 174(2)(a) as encompassing an application for retrospective planning permission for the modification of the building so as to make it conform to the 2005 consent, and did not apparently address his mind to this possibility, either under section 174(2)(a) or section 174(2)(f). Save for making a number of minor and inconsequential corrections, he upheld the enforcement notice.
11. The Appellant appeals against the Inspector's decision under section 289 of the 1990 Act. In granting permission to appeal Mrs. Justice Lang confined the scope of the appeal to the Appellant's challenge under section 174(2)(f).

The statutory scheme

12. The scheme established by the 1990 Act was designed to give effect to the recommendations made by Robert Carnworth QC, as he then was, in the 1989 report Enforcing Planning Control, HMSO 1989. The central aim of the legislation was to give Inspectors appointed by the Secretary of State "a broad discretionary power to deal with the effects of a breach" (ibid, pp. 73-4). The grounds of appeal set out in the Act were designed to reflect that approach: Tapecrown Limited v First Secretary of State [2006] EWCA Civ 1744 at [30] per Carnworth LJ, as he then was.
13. Section 173(3) of the 1990 Act provides that an enforcement notice must specify the steps which the authority require to be taken in order to achieve, wholly or partly, the statutory purposes set out in section 173(4). So far as relevant, those purposes are either (a) remedying the breach of planning control by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted, or by restoring the land to its condition before the breach took place or (b) remedying any injury to amenity which has been caused by the breach.
14. Section 174(2)(f) provides that an appeal may be brought on the ground "that the steps required by the notice to be taken...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".
15. In considering an appeal under section 174 the Secretary of State has power, under section 176(1)(b), to vary the terms of an enforcement notice if he is satisfied that the variation will not cause injustice to the appellant or the local planning authority.
16. By section 177(1) the Secretary of State is given express power to (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"; and (b) to discharge any condition or limitation subject to which planning permission was granted. This provision goes hand in hand with section 174(2)(a). In considering whether to grant retrospective planning permission under section 177(1) the Secretary of State is required by section 177(2) to have regard to the provisions of the development plan, so far as material, and to any other material consideration. As the law stood at the time of the decision letter, section 177(5) further provided that an application for retrospective planning permission was deemed to have been made for all the matters stated in the enforcement notice as constituting a breach of planning control.

The rival submissions of the parties

17. In summary, the Appellant contends that the requirement in the enforcement notice for the complete demolition of the building amounted to over-enforcement for the purposes of section 174(2)(f), and that the Inspector accordingly erred in law by failing to consider whether the breach of planning control could be rectified by amending the enforcement notice so as to require the partial demolition of the building and its remodelling so as to make it conform to the terms of the 2005 consent. He submits that in considering the present appeal the Inspector had power under 176(1)(b) to vary the terms of the enforcement notice to remedy the breach of planning control, as well as having power under section 177(1) to grant retrospective consent for that part of the structure that was authorised by the 2005 consent. He contends that in failing to consider the exercise of these combined powers so as to enable the Inspector to authorise the remodelling of the building to conform to the 2005 consent, the Inspector erred in law.
18. The Secretary of State rightly concedes that if the 2005 consent had been extant at the time of the Inspector's decision he could have exercised his general power under section 176(1)(b) to vary the enforcement notice so that instead of requiring complete demolition of the building it would instead have required its reconfiguration so as to comply with the 2005 permission. Since that would have been a power open to him on the facts, and since it was precisely what the appellant was seeking under ground (f), the Inspector would have been obliged at least to address his mind to this possibility and to consider whether it could be achieved without injustice to either party, something he plainly did not do. However, since the 2005 permission had in fact lapsed on 7 July 2010 the Secretary of State contends that there was no extant permission for the building at the time of the Inspector's decision, and that there was therefore no means by which the notice could be varied to bring about a reconfiguration of the building as contended by the Appellant.
19. The first limb of this proposition is uncontroversial. The 2005 consent had undoubtedly lapsed by the time of the Inspector's decision. The second limb however goes to the nub of the appeal and is said by the Appellant to be a non-sequitur. The question is whether the fact that the prior consent had lapsed deprived the Inspector of the power to vary the enforcement notice so as to conform with the terms of the (lapsed) 2005 consent, accompanied if necessary by the grant of retrospective consent under section 177.
20. Briefly summarised, the Secretary of State's argument is as follows. An enforcement notice can be issued either for the purposes of remedying a breach of planning control, or for the purposes of remedying an injury to amenity, or both. It is therefore necessary to focus on the statutory purpose for which the notice was issued. If it is issued solely for the purposes of remedying an injury to amenity resulting from a breach of planning control then an Inspector has the power under section 176(1)(b) to vary the notice so as to remedy the injury to amenity, providing he can do so without injustice. The Inspector in the present case recognised this, and acknowledged that "an alteration to the building which resulted in it complying with the application that was previously granted might be sufficient to remedy the injury to amenity" (see paragraph 9 above).
21. Where, however, as in the present case, the notice is issued for the purposes of remedying a breach of planning control, rather than remedying an injury to amenity, the Inspector cannot resort to the variation power under section 176 unless either (a) there is either extant consent for the structure, or (b) the Inspector grants retrospective consent under section 174(2)(a). It is only if valid consent is in place via one of these two routes that over-enforcement of the kind envisaged in section 174(2)(f) can be remedied by a variation of the enforcement notice under section 176. Thus, the only circumstances in which a variation under section 176 will be the appropriate stand-alone remedy for a challenge under section 174(2)(f) is if compliance with the amended notice can be achieved without the necessity of carrying out further works requiring consent.
22. The Secretary of State argues that this is entirely consistent with the statutory scheme. If, in a case of apparent over-enforcement, an earlier consent has lapsed the appropriate means for putting the situation right is for the Inspector, if explicitly asked to do so, to grant consent under section 174(2)(a), either for the whole, or for a part of the building. In support of this analysis the Secretary of State refers to the analysis of Carnworth LJ in Tapecrown Limited v First Secretary of State [2006] EWCA Civ 1744:

"31. ...S 173(3) allows the steps required by the enforcement notice to be directed to achieving "wholly or partly" any of the purposes referred to in subs. (4). Those purposes are, in summary, remedying the breach, or remedying "any injury to amenity" caused by the breach. In so far as the notice requires less than a full remedy of the alleged breach, there is provision for deemed permission for what is left after compliance (s. 173(11)).

32. There is a possible gap here. Repairing the damage to amenity may be only part of what is needed. Even a physically unobtrusive development may be objectionable in planning terms, but it may be made more acceptable by steps short of total demolition. That is the province of ground (a), which needs to be read with s. 177. The latter makes it clear that, on an enforcement appeal, planning permission may be granted in respect of matters alleged in the notice "in relation to the whole or any part of those matters" (s. 177(1)(a)): that for this purpose ordinary planning considerations (including the development plan) must be taken into account (s. 177(2)); and that the permission is to be treated as though granted on an application (s. 177(3),(6)), and so (at least by implication) may be subject to any necessary conditions."

23. It follows, says the Secretary of State, that in a case where the original consent has lapsed, sections 174(2)(f) and 176 cannot provide a remedy enabling the remodelling of a building to conform with the expired permission. To put the matter another way, a variation of an enforcement notice under section 176 cannot revive an expired consent. In order to achieve the result sought by the Appellant, in a case where prior consent has lapsed, a specific application must be made under section 174(2)(a) for consent in terms mirroring those of the prior (elapsed) consent. Where the Appellant's primary case under section 174(2)(a) is that consent should be granted for the structure as built, it is incumbent upon him to specify the alternative fall-back position as an express part of his submissions under section 174(2)(a). It is not sufficient that he may have raised this option in connection with his submissions under section 174(2)(f) because, for the reasons already given, that cannot provide him with the remedy he seeks in the absence of valid and subsisting consent for the necessary remedial works.
24. The Secretary of State recognises that section 177(5), as it stood at the relevant time, provided for a deemed planning application in respect of all those matters set out in the enforcement notice. However, the Secretary of State argues that it was nevertheless necessary for the Appellant to spell out in terms the specific consent he was seeking as a fall-back position in that part of his submissions on appeal that related directly to his application under section 174(2)(a). In the present case, the Appellant sought consent under section 174(2)(a) for the building as constructed. That consent was refused by the Inspector on a consideration of the merits and that aspect of the Inspector's decision is not in issue in this appeal. Since the Appellant failed to specify, as an alternative submission under section 174(2)(a), that he was, as a fall-back, seeking retrospective consent for the modification of the building so to conform with the 2005 consent, the Inspector was not required to address his mind to this alternative possibility.
25. The Secretary of State's case therefore comes to this: Although the Appellant had clearly spelled out his fall-back position in his submissions under section 174(2)(f), he could not succeed under that provision (taken with section 176) because the 2005 consent had lapsed; and he could not succeed under section 174(2)(a), which might remedy the procedural problem arising under section 176 and ground (f), despite the deeming provision in section 177(5), because he had failed to specify the fall-back position expressly as an alternative in that part of his submissions on appeal that was addressed to the Inspector's powers under section 174(2)(a). There is no general requirement for the Inspector to read a submission made under ground (f) across to a submission (or deemed application) made under ground (a).

Consideration

26. To characterise the Secretary of State's submission as a "mere" pleading point would not do it justice. Whilst the statutory provisions, taken as a whole, were plainly intended to enable an Inspector to consider the merits of any fall-back proposal properly put forward by an Appellant, and to direct appropriate remedial action short of full demolition where appropriate, it is equally clear that an Inspector is not to be criticised for failing to address his mind to a substantive submission that was never put to him, unless from the submissions that were advanced, and from any site inspection, that option would have presented itself to any reasonable Inspector as an "obvious alternative" course.
27. The general principles have been considered by the Court of Appeal in a line of cases dealing with alleged over-enforcement: Taylor and Sons (Farms) v Secretary of State [2001] EWCA Civ 1254; Tapecrown Limited v First Secretary of State [2006] EWCA Civ 1744; and Moore v Secretary of State for Communities and Local Government and anor. [2012] EWCA Civ 1202.
28. In Taylor the appellants had deposited waste material and rubble on their farm and had constructed a large area of hard standing without planning consent. The enforcement notice required them to remove it all and restore the land to its previous condition. In an appeal under section 174(2)(f) it was argued that the Inspector was under a duty to ask himself how much hard standing was reasonably necessary for the purposes of agriculture within the unit, and that the Inspector should have varied the notice so as to confine it to the removal of the excess. In rejecting this submission Schiemann LJ noted that the appellants had failed at any time to specify their fall-back position under section 174(2)(f), or to indicate how much of the hard standing they contended should be retained for agricultural purposes. He went on to observe (at para. [40]) that the "proper course for an appellant who appeals on ground (f) was to specify, without prejudice to his main contentions, his fall-back position and to indicate what variation to the notice he submits should be made". He then set out the following general principle (at [41]):

"Appellants should contemplate the possibility that their primary contentions may fail and that those of their opponents may succeed. The very reliance on ground (f) shows that this is the position. If there is a fall-back position on which they wish to rely then they should make this clear to the Secretary of State in their submissions. It is not reasonable to come to this Court, as has happened here, and ask for the case to be remitted to the Inspector so that she may ask for further submissions – which could and should have been made in the first place if the landowner wished to advance them. It might well be that the Inspector had the jurisdiction to explore the possibilities further with the parties. But the appellant was professionally advised. The advisers had chosen not to make any submissions in detail under ground (f). Certainly in those circumstances any failure by the Inspector to advert in her decision letter to the possibility of asking for further submissions does not amount to an error of law."

29. The criticism levelled at the appellants in Taylor cannot of course be levelled at the present Appellant. He and his advisers had clearly set out their alternative fall-back position under ground (f), namely that in order to make the development acceptable on planning grounds all that was necessary was for the building to be modified to comply with the design of the scheme approved in 2005. The Secretary of State's riposte is that the Appellant and his advisers should have appreciated that his case under ground (f) alone could not succeed because the prior planning permission had lapsed and that his fall-back position could therefore only be realised in reliance on ground (a) and (f) in combination, seeking both a variation in the enforcement notice under section 176 and the grant of consent in accordance with the 2005 scheme under section 177.
30. In Tapecrown, a case with certain similarities to the facts of Taylor, Carnworth LJ emphasised that whilst an Inspector should consider all obvious alternative options, his primary task was to consider the proposals that were advanced by an appellant:

"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...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."

31. In striking the appropriate balance, Carnworth LJ held that even where an appellant has failed to articulate a fall-back position with sufficient clarity as part of his substantive case, an Inspector should nonetheless consider any "obvious alternative" to full demolition which would overcome "the planning difficulties".

"46. As I have said, I would not wish to lay down any general rules. I would accept that as a general proposition, given the limitations of the written representations procedure, an appellant would be well advised to put forward any possible fall-back position as part of his substantive case. It is not the duty of the Inspector to make his case for him. 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 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."

32. The Appellant contends that the guidance of the Court in Tapecrown, read as a whole, makes it clear that if there is a readily identifiable alternative to complete demolition which can remedy both the planning and amenity objections, then the Inspector should consider this option and should be prepared both to vary the enforcement notice and to grant permission, subject to any requirements of procedural fairness which may arise on the facts of a particular case. Neither the language of the statute nor the guidance of the Court of Appeal compels the conclusion that in a case where prior consent has lapsed, there is an additional requirement on the appellant to spell out his fall-back position in the context of his arguments under ground (a). Providing it has been adequately spelt out in his submissions under ground (f), that will suffice.
33. The submissions of the appellant on this point appear to me to fall comfortably within the guidance given by the Court in Tapecrown, which enjoins Inspectors to consider any obvious alternative. An alternative which has been raised in terms, by reference to a prior scheme which had been granted consent (albeit that the consent had lapsed) appears to me to be precisely the sort of situation that the Court had in mind in Tapecrown. It does not of course follow from this that the Inspector was obliged to grant consent. He may well have taken the view that fairness required him to give the Council, and any potential objectors, an opportunity to comment on the proposal and he might, in light of those comments, have rejected it. However, he was, in my view at the very least required to address his mind to this possible course, and this he plainly failed to do.
34. I am reinforced in this conclusion by the third decision in this line of cases. In Moore, the appellant challenged a decision of a planning Inspector to uphold an enforcement notice in connection with the change of use of a dwelling house which had been converted for letting as holiday accommodation. The notice required the appellant to cease commercial letting of the property. The Court dismissed the appellant's challenge to the Inspector's decision that there had indeed been a change of use, but went on to consider whether any breach of planning control or injury to amenity could be remedied by the imposition of conditions. The Court observed that if the appellant had a valid complaint it was not that the alleged breach of planning control did not occur, it was that the requirements of the notice were excessive. On the question whether a fall-back position needed to be pleaded on appeal directly in relation to ground (f) Sullivan LJ, on behalf of the Court, said this:

"38. On behalf of [the Secretary of State] Mr. Lewis submitted that this complaint should have been made in the appeal under ground (f) and it was not. In her appeal under ground (f) the Appellant did not suggest that the description of the prohibited use should be narrowed down, she submitted than any adverse impact on residential amenity could be ameliorated by a limitation on the numbers using the property and by a noise management plan.

39. Mr. Lewis referred us to a number of authorities, including Tapecrown Limited v First Secretary of State [2006] EWCA Civ 1744 and Taylor and Sons (Farms) v Secretary of State [2001] EWCA Civ 1254, which establish the proposition that an appellant under ground (f) should state his "fall-back" position because the Inspector's primary duty is to consider the proposals which have been put before him, and he is not under a duty 'to search around for solutions'.

40. We readily accept that it is not the duty of an Inspector to make an appellant's case for him (see paragraph 46 of Tapecrown, per Carnworth LJ as he then was), but in the present case the appellant had made her case, albeit that she made it under ground (b) rather than ground (f), that the alleged use in breach of planning control, which the notice required her to cease, was too wide. As Carnworth LJ observed in Tapecrown "the enforcement procedure is intended to be remedial rather than punitive" (paragraph 46). We accept [counsel for the appellant's] submission that the mere fact that this issue was raised under ground (b) rather than ground (f) is not fatal to this ground of appeal. If there was "an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total [cessation]" the Inspector should have considered it: Tapecrown (ibid)."

35. Moore thus stands as clear authority for the proposition that where an appellant has advanced a properly articulated fall-back submission under grounds (a) to (e) in section 174(2) it may also be considered under ground (f). I can see no reason in logic or principle why the reverse should not also be true. In the present case the Appellant made his fall-back position clearly under ground (f). The Inspector concluded that the appellant's fall-back position might have remedied the injury to amenity. The Inspector however concluded that it could not be an obvious alternative for the purpose of the present notice, which had been issued for the sole purpose of remedying the breach of planning control, because the prior consent had already lapsed by the time of his decision.
36. In my judgment the Inspector overlooked an obvious alternative that could have remedied the breach of planning control that was the object of the notice – namely the possibility of varying the order, as requested by the appellant under ground (f), and at the same time granting retrospective planning consent under section 177, which provides a power to grant consent in respect of part of the matters that were the subject of the notice (namely that part of the building which could remain standing in accordance with the prior consent had it not lapsed). The Appellant was, at the time, deemed also to have made a planning application under ground (a). For the purposes of that application, and treating the Appellant's submissions as a whole in accordance with the approach adopted in Moore, it was in my judgment incumbent on the Inspector at least to consider whether to exercise his power to vary the notice and grant consent in accordance with the proposal made under ground (f). Having concluded that he lacked the power to vary the order under section 176 standing alone, recourse to section 177(1) and section 174(2)(a) was the obvious alternative course which could have overcome the planning difficulties, at less cost and disruption than total demolition. In failing to address his mind to this possibility, the Inspector in my judgment erred in law.
37. To hold otherwise would produce a curious anomaly. If the approach advocated by the Secretary of State were adopted it would be necessary to determine whether the operative date (for the purposes of considering whether the prior consent had lapsed) should be the date of the enforcement notice, or the date of the Inspector's decision letter. The authorities suggest that the operative date is that of the Inspector's decision (see by analogy Patel v Secretary of State for Transport, Local Government and the Regions, [2003] EWHC 1963). It would follow than an enforcement notice might be issued whilst the prior consent remained extant but the appeal determined by the Inspector after the consent had lapsed. Thus a delay in the appeal process would deprive the Appellant of a substantive remedy. A similar result would occur if the Council were to delay an enforcement notice so that it was issued only after the prior consent had lapsed. In those circumstances, and perhaps others, it would be the passage of time occupied for the enforcement and appeal process which determined whether a viable and practicable alternative course was available. That does not appear to me to promote the objects of the legislation as described by the Court of Appeal in Tapecrown.
38. I would therefore allow this appeal and remit the matter to the Inspector for reconsideration. I note from the papers that whilst pursuing the present appeal the Appellant has also made a series of further applications for planning consent to alter the building so as to conform with Hackney's current planning policies, the latest of which was granted on appeal on 26 February 2013. The present appeal however must be, and has been, considered solely on the basis of the information that was before the Inspector on 31 March 2011. Neither party has submitted that the subsequent grant of permission ought to influence the outcome of the present appeal, or the exercise of the Court's discretion in remitting the matter for reconsideration. In those circumstances, this appeal is allowed.