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
		29/07/2015

MR JUSTICE GILBART :

1. This case raises, among other matters, the effect of section 180 of the Town and Country Planning Act 1990 ("TCPA 1990") in the context of an application for a certificate of lawful use under section 191 of the Act.
2. It arises in the context of a challenge under section 288 of the Act to a decision letter of an Inspector of the First Defendant of 28th January 2015, whereby he dismissed the Claimant's appeal against the refusal on 23rd December 2011 of the Second Defendant Harrow Council, the Local Planning Authority of an application by the Claimant on 5th October 2011 for a certificate of lawful development under section 191 of TCPA 1990. The development, at 85A Whitchurch Lane, Edgware, Middlesex was described as

"a single storey extension with a pitched and flat roof, velux windows, small windows, French windows, electrics, plumbing and drainage"

It was also stated that the structure had been substantially completed before July 2004.

3. I shall deal with matters as follows:

(a) The development in question

(b) Planning History

(c) The Decision Letter under challenge

(d) Statutory Context

(e) Submissions of Claimant

(f) Submissions of First Defendant

(g) Discussion and Conclusions.

(a) The development in question

4. The development consists of an extension to a suburban bungalow. The extension was constructed without being authorised by any planning permission, which was required for its construction by virtue of sections 55 and 57 TCPA 1990. The bungalow lies on the eastern side of Montgomery Road, running roughly north north west to south south east. At its northern end is a conservatory. The building in question is connected to the northern side of the conservatory. It then runs roughly westwards from about 3 metres north of the northern wall of the bungalow at the eastern (conservatory) end, but projects beyond the building line afforded by the western wall by about 2.3 metres. However it is not parallel to the northern wall, so that it is about 2.5 metres from it at the point where the north-western corner of the house lies.
5. Although its eaves height is similar to that of the bungalow, the building has a pitched roof, with living space within that roof. The pitched roof does not extend the full length of the building, but finishes about opposite the bungalow's north western corner. At its western end is a dormer window, looking out on to the flat roof which covers the remainder of the building to the west.

(b) Planning History

6. The relevant planning history is as follows (I have excluded matters irrelevant to the issues);

i) application for retention of single storey extension with dormer window and roof terrace: permission refused 24th May 2006;

ii) application for retention of the building, together with alterations: refused 10th November 2006, and dismissed on appeal 27th September 2007;

iii) Enforcement Notice issued alleging that building erected without planning permission (see below for precise terms) and requiring the steps identified below within 3 months after Notice came into effect: 31st July 2008. Appeal against Notice on grounds (a) (d) and (f) in section 174(2) of TCPA 1990, but ground (a) (i.e. that planning permission should be granted for the development to which the notice relates) was withdrawn by the Claimant at the start of the inquiry; appeal dismissed 17th June 2009: appeal to High Court against decision letter dismissed 16th April 2010 (Nestorova-Goremsandu v Secretary of State for Communities & Local Government & Anor (Silber J) [2010] EWHC 793 (Admin)); the breach alleged was

" without planning permission, the erection of a single storey rear extension with dormer window ("the Unauthorised Development" ) on the land attached to the dwelling via an existing conservatory link"

and the steps required to be taken were

" 5.1 Demolish the Unauthorised Development

5.2 Permanently remove from the land all debris and materials resulting from step 5.1"

iv) application for "removal of pitched roof of linked single storey rear extension and replacement with flat roof, reduction of footprint of linked single storey rear extension to line up with flank wall of existing principal bungalow, alterations to fenestration" granted permission on 22nd December 2009 with conditions. They included a condition requiring completion of the works within 6 months of that date. On 1st June 2010, the time for completion was extended to 10th October 2010. The detailed drawings attached to the permission show precisely where the retained sections of the building are, and the intended roof line;

v) application in very similar terms made on 23rd June 2011 and granted on 12th October 2011, with a condition requiring completion by 31st January 2012. The detailed drawings attached to the permission again show precisely where the retained sections of the building are, and the intended roof line;

vi) 5th October 2011; application the subject matter of these proceedings, refused on 23rd December 2011: appeal dismissed by First Defendant's Inspector by decision letter of 22nd February 2013: Order of High Court (by consent) quashing decision on 7th March 2014 on the grounds that " the First Defendant concedes that the Inspector erred in failing to consider whether and to what extent there was a congruence between the unauthorised extension and the development approved by the planning permissions, which was required for a proper analysis of the effect of section 180 of the 1990 Act on the 2008 Enforcement Notice." Appeal remitted to First Defendant for consideration.

vii) an application in very similar terms to that granted on 22nd December 2009 was granted on 5th April 2012, with a condition requiring completion by 9th June 2012. The detailed drawings attached to the permission again show precisely where the retained sections of the building are, and the intended roof line;

viii) decision letter under challenge issued on 28th January 2015.

(c) The Decision Letter under challenge

7. In his decision letter the Inspector said the following;

"1 …………………………………………………..

2. The appeal is dismissed

Reasons

3. The property has been the subject of a number of planning applications and appeals since 2006. A single storey extension was constructed for which there were two retrospective applications for its retention in May and November 2006. The November decision was dismissed at appeal in September 2007.

4. An enforcement notice was issued in July 2008 alleging the erection of a single storey rear extension with a dormer window and requiring the removal of the whole structure. An appeal against the notice was dismissed, with the Inspector concluding that there was evidence of the extension being under construction in 2005 and nearing completion in September 2007.

5. Four applications for planning permissions for retention of the extension subject to modification were granted in December 2009, June 2010, October 2011 and April 2012.

6………………………………………………….

7. I consider that the main issues are:

Whether the decision of the local planning authority was well founded, in particular whether the extension was substantially completed for any continuous period of four years before the application and previous enforcement notice.

The effect of the previous enforcement notice, taking into consideration Section 180 of the Town and Country Planning Act.

Substantial completion

8. To succeed the extension would need to have been completed for a period of four years sometime before the date of the applications, 5 October 2007 being the latest date.

9. There is an extant enforcement notice covering the period from 31 July 2004 to 31 July 2008. for the extension to be lawful as claimed by the appellant it would need to have been substantially completed before 31 July 2004, which requires consideration of the totality of the operations intended to be carried out, internally and externally.

10. At the inquiry relating to the enforcement notice in 2009, the appellant's statement of proof of evidence was that work started in late 2001 and was completed by January 2002. For this appeal the appellant's statement notes the building being completed in July 2004, which appears contradictory.

11. The evidence at the 2009 inquiry included an aerial photograph from 2003, which showed there to be no extension in place, so that would indicate that the date of completion in January 2002 would not be the correct recollection. The appellant says that the photograph could not have been taken by Bluesky as noted, because the company was not formed at that time. The appellant notes that Bluesky say that Aerofilms took the photograph but that Aerofilms went into liquidation a few years ago. However while not taken by them Bluesky has confirmed in a letter that the photographs supplied to the council were taken on 7 January 2006 and 13 July 2003. The fact the English Heritage does not have photographs for between 2001 and 2006 does not mean that these were not taken on the identified date.

12. At the 2009 inquiry it was also recorded that it was clear from photographs taken by the enforcement officer the works were continuing in January 2006. To my mind the structure present in these photographs is typical of a building that is under construction. It was also noted particularly that there was little evidence of some internal walls, plastic on the fittings and electrical or other services. The appellant says this is when repairs, including the replacement of tiles and rafters, were being undertaken. Invoices for 2004 and 2006 for roofing work are provided with a statement from Mr Hassan dated 29 April 2007 (…..). This evidence is provided to show the roof was complete by 2004 and repaired in 2006. However, Mr Hassan notes that he repaired the roof in March 2004 which would have been at the time the appellant notes in her statement as being before construction was completed i.e. July of 2004. It would be odd to be repairing a roof of a building under construction. It was then in January 2006 Mr Hassan came and took the old pitched roof of to repair it. Repair works were said to have started in January 2006 and been completed in 2006.

13.……………………………………………………………………

14. Mr Hassan's declaration notes the old picture was taken off, with only the old parts being reused, including the three roof windows and dormer window/door. Taking into account the Google photograph provided by the appellant, with a very indistinct date, I do not consider it at all credible that a building completed at the earliest in January 2002 would then require the pitched roof timbers to be replaced only four years later. Even with old roof tiles and timbers being used from the previous roof this scenario is not probable. Mr Stanev's evidence indicates that on a visit in January 2006 he understood the roof was to be repaired and that the repairs were done at the end of February 2006 when he made another visit. This appears to contradict the evidence of Mr Hassan, who stated that it was completed at the end of 2006, and limits the reliance that I place upon it.

15. ….. at an Inspectors visit at the end of 2007 it was noted that the development was "in an advanced state of construction," which indicates that it was not fully completed at that time.

16. In terms of the lack of internal fittings identified from the 2009 inquiry, the appellant explains in relation to this LDC application that she has a preference for exposed brickwork and that the building was for storage purposes and that it is still used primarily for storage, although reference is also made to use for ancillary purposes as well. In my opinion, the design of the building, with dormer windows, French doors and plans showing accommodation, including a kitchen and bathroom, does not suggest a storage use. Also in the 2009 appeal the Inspector describes the interior with plaster throughout and heavily moulded plasterwork on the ceilings. My conclusions is that the extension was not built as a store, but most likely as additional accommodation for the main house and that this was not substantially completed at the time of the Inspectors visit in September 2007. Even if it were restored, it was not complete in January 2006, as can be seen from the Enforcement Officers photographs, it having no completed roof.

17. ……………………………………………………………………

18. The onus of proof in a LDC application/appeal is firmly on the appellant with the test being on the balance of probability. The appellant's own evidence does not need corroborating by "independent" evidence in order to be accepted and if the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the appellant's version of events less than probable, there is no good reason to refuse the appeal provided the appellant's evidence alone is sufficiently precise and unambiguous "on the balance of probability."

19. In this case I find that the appellant's evidence is not sufficiently precise and unambiguous, with confusion between dates. The evidence of what the previous Inspector saw at the site visit in September 2007 clearly contradicts the appellant's evidence and the photographs taken by the Enforcement Officer in January 2006 indicate a building under construction and not one having a new roof constructed after only two years or at the most four years from new. I conclude that the evidence provided by the council contradicts and makes the appellant's version of events less than probable and that the building was not constructed for any period of four years prior to the enforcement notice coming into effect.

20. The application for the LDC was made on 5 October 2011, at which time the enforcement notice was in place, although there was still then time for compliance. Even if the July 2008 enforcement notice was of no effect, as claimed by the appellant, from the evidence before me I cannot conclude, on the balance of probability, that the development was substantially complete by October 2007. Therefore, unless planning permission has been granted subsequently to override the enforcement notice, I conclude that the extension would not be lawful."

8. The Inspector then considered the various planning permissions that had been granted. In the case of the 2009 permission he said:

"22. To my mind this description is clearly indicative of the intention to retain at least parts of the existing structure and therefore is at least part retrospective. The LDC applied for in relation to this appeal relates to the extension, which has a large pitched roof and small "extended area" with a flat roof. The increased plan area, volume of the roof and height, compared to what was subsequently permitted, results in the substantially bulkier and very different structure from that approved under the (2009) application and those subsequent."

9. He referred to the later permissions but concluded that they did not affect his assessment of the 2009 permission. He then went on:

"26. In relation to the High Court Challenge of the previous decision, the appellant's case was that the later planning permission did not require the demolition of the extension to the property and the rebuilding of a smaller structure, but the retention of the extension subject to modification and that Section 180 of the TCPA 1990 thus rendered the 2008 enforcement notice of no effect because it was inconsistent with the development approved by the permissions of 2009, 2011 and 2012. Therefore it was put that as a result of the 2009 permission the 2008 enforcement notice ceased to have effect.

27. However what Section 180 (1) of the Town and Country Planning Act 1990 states is that where, after the service of a copy of an enforcement notice, planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect, so far as inconsistent with that permission (my emphasis). I conclude that enforcing the requirements of the enforcement notice would not be inconsistent with the later grant of planning permission, because of the substantial difference in form and size of what is enforced against and what received planning permission subsequently, so what is proposed in this application for an LDC remains unlawful.

28. Having considered the planning permission subsequent to the enforcement notice, I conclude that the enforcement notice remains effective and interrupts the development as constructed from becoming lawful through the passage of time when the notice becomes effective."

(d) Statutory Context

10. It is necessary to say a little about enforcement before turning to section 191 of TCPA 1990. The construction of an extension is operational development for the purposes of section 55(1) TCPA 1990 and requires express planning permission by virtue of section 57. A building of this size would exceed tolerances for permitted development within the curtilage of a dwelling house under the Town and Country Planning (General Permitted Development ) Order 1995 Schedule 2.
11. By section 171A, the carrying out of such development without the grant of planning permission constitutes a breach of planning control. However by section 171B(1) no enforcement action may be taken

"after the end of the period of 4 years beginning with the date on which the operations were substantially completed."

12. However by section 171B(4),

" the preceding subsections do not prevent—

(a) ………………………………………or

(b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach."

13. Section 172B deals with the issue of Enforcement Notices. A Local Planning Authority may issue one in respect of development carried out in breach of planning control. Its terms must comply with section 173, which includes a requirement (subsection (3)) that the Notice specifies the steps which the Local Planning Authority requires to be taken, so as to achieve, wholly or partly, the remedying of any injury to amenity caused by the breach. Those steps may include, for example (subsection (5)) the alteration or removal of any buildings or works. A time for compliance is required (subsection 9).
14. An appeal may be made on the grounds listed in section 174(2). They include grounds (a), (d) and (f):

"(a) that planning permission should be granted for the development to which the notice relates;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(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."

15. Where any steps required in an Enforcement Notice are not complied with, the local planning authority may enter the land and take those steps (s 178). Failure to take any step amounts to a criminal offence by the owner of the land (s 179).
16. The situation where a planning permission is subsequently granted is dealt with by section 180 TCPA 1990. It reads

"(1) Where, after the service of—

(a) a copy of an enforcement notice; or

(b) ……………………………………

planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as inconsistent with that permission.

(2) …………………………………………………..

(3) The fact that an enforcement notice ……………..has wholly or partly ceased to have effect by virtue of this section shall not affect the liability of any person for an offence in respect of a previous failure to comply, or secure compliance, with the notice."

17. Section 191 reads

" (1)If any person wishes to ascertain whether—

(a) any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2) For the purposes of this Act uses and operations are lawful at any time if—

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

(3) ……………………………………………………………………….

(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(5) A certificate under this section shall—

(a) specify the land to which it relates;

(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);

(c) give the reasons for determining the use, operations or other matter to be lawful; and

(d) specify the date of the application for the certificate.

(6)The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.

(7) ……………………………………………………………………"

18. Appeals are dealt with by section 195, of which the following parts are germane in this case

"(2) On any such appeal, if and so far as the Secretary of State is satisfied—

(a) in the case of an appeal under subsection (1)(a), that the authority's refusal is not well-founded, or

(b) in the case of an appeal under subsection (1)(b), that if the authority had refused the application their refusal would not have been well-founded,

he shall grant the appellant a certificate under section 191………… accordingly or, in the case of a refusal in part, modify the certificate granted by the authority on the application.

(3) If and so far as the Secretary of State is satisfied that the authority's refusal is or, as the case may be, would have been well-founded, he shall dismiss the appeal."

(e) Submissions of Claimant

19. Mr Davis argued two grounds

i) as was conceded by the First Defendant, the test applied by the Inspector to the interpretation of section 180 of TCPA 1990 was erroneous and failed to apply the tests in the section, as interpreted in London Borough of Brent v Adil [2010] EWHC 3654 (Admin) per Moses LJ, R v Chichester JJ ex p Chichester DC [1990] 60 P & CR 342 per Roch J, and Rapose v Wandsworth LBC [2010] EWHC 3126 (Admin) [2011] JPL 600 per Lindblom J;

ii) his conclusion that the Claimant had not shown that the works had been substantially completed by 5th October 2007 was unreasonable and/or not adequately reasoned.

20. He also sought a declaration that the enforcement notice was " of no effect."
21. Mr Davis accepted that, given the terms of section 191(2), he had to succeed on both grounds to succeed in quashing the decision. So far as his first ground is concerned, he argued the following;

i) as at the date of the application for the LDC (5th October 2011) there had been a planning permission (that in 2009) which permitted retention of much of the building whose demolition had been required by the enforcement notice, and another permission (that in 2011) by the date of the Council's refusal of the application;

ii) the fact that the subsequent permission was unimplemented did not deprive section 180 of force; see London Borough of Havering Council v The Secretary of State for the Environment [1983] J.P.L. 240 and Cresswell v Pearson [1998] 75 P &CR 404 per Brooke LJ;

iii) there was a three stage test, as set out in Adil at [8]-[9]

a) has planning permission been granted after the enforcement notice has been served ?

b) has planning permission been granted for any development carried out before the grant of the permission?

c) To what extent can the steps required to be taken in the enforcement notice be imposed consistently with the retrospective permission that has been granted ?

iv) One must then apply the approach of Roch J (as he then was) in Chichester JJ and analyse which parts of the buildings which were the subject of the enforcement notice are to be retained pursuant to the permission;

v) As per Rapose one must ask if there are elements of the building common to both the permission and the enforcement notice. If there is fabric which was to be retained under the permission, then its removal cannot be required under the enforcement notice;

vi) The inspector has failed to conduct that necessary analysis;

vii) Had he done so, he was bound to conclude that the enforcement notice was inconsistent with the subsequent planning permission. The steps required in the enforcement notice required the removal of the building in its entirety, which was inconsistent with the permission, which permitted the retention of much of the ground floor.

viii) The alternative approach would be that the enforcement notice still required the removal of those parts of the building whose retention was not permitted. That would leave a building without a roof and open to the elements at the western end. That would be an absurd and undesirable result;

ix) If, as he submitted, the enforcement notice was inconsistent with the subsequent permission, it meant that the local planning authority could take no steps to execute the works or remove the building otherwise. If, as he contended was the case under ground (2) , the building had been substantially completed before 5th October 2007, then the building was immune from enforcement action at the date of the LDC application because the works had been substantially completed more than four years earlier;

x) If the works had not been substantially completed by then, it would have been open to the Council to have served a further enforcement notice directed to the parts of the building whose retention had not been permitted.

22. As to his second ground, he argued that

i) an holistic approach had to be adopted to the question of when substantial completion occurred; see Sage v Secretary of State for the Environment etc [2003] 1 WLR 983 (HL). The question is a matter of fact and degree;

ii) the Inspector's finding at paragraph 20 was based on an observation by the 2007 Inspector that as at 11th September 2007 the building was "in an advanced state of construction," from which he had inferred at paragraph 15 that the development was not fully complete at the time. That was the wrong test;

iii) further, it was an unreasonable to place the meaning on that which he had. It was not the 2007 Inspector's task to determine whether the works were substantially complete at that time. That was a matter for an Inspector dealing with an enforcement or LDC appeal;

iv) the fact that it was in advanced state of construction did not mean that it was not substantially completed;

v) the Council also seem to have treated the substantial completion as having occurred by then- see paragraph 7.11 of its case in the written representations submitted to the Inspector;

vi) his approach left the Claimant in substantial doubt whether the Inspector had erred in law. The reasoning was thus inadequate when measured against the tests in S Bucks DC v Porter (No 2) [2004] UKHL 33 [2004] 1 WLR 1953 at [36] per Lord Brown of Eaton-under-Heywood.

(f) Submissions of First Defendant

23. On Mr Davis' first ground Mr Ormondroyd accepted that the Inspector had failed to address the tests in section 180 TCPA properly, and had applied a test at paragraph 27 which was unsupportable on the authorities. However he contended that the appeal should still be dismissed. He argued as follows:

i) the Claimant had to succeed on both grounds to succeed in the action. That is because, if the Inspector was correct that the works had not been substantially completed more than four years earlier, an enforcement notice could still have been issued, and the test in s 191(2)(a)) would not have been met;

ii) even if a declaration could be made (and a section 288 claim is not one for judicial review and is therefore not within section 31 of the Senior Courts Act 1981) it should not be made;

iii) the question of congruence between the requirements of the enforcement notice and the retention permitted by the planning permission was a matter of fact and degree- see Rapose per Lindblom J at [39]. The enforcement notice would still be effective against those parts of the fabric whose retention was not permitted by the subsequent permission;

iv) As to the second ground, Mr Ormondroyd argued in his skeleton argument that

a) The Inspector's reasoning was fully set out. He had carefully considered all the evidence and arguments put before him. His conclusion at paragraphs 18-20 that the Claimant had not satisfied him on the balance of probability that the works were substantially completed by 5th October 2011 was a proper application of the test in section 191(4) TCPA 1990 as applied on appeal by section 195(2)(a) and (3);

b) The Wednesbury test is a high hurdle. There is nothing which shows that the test has been passed by the Claimant.

(g) Discussion and Conclusions

24. I agree with both Counsel that if the second ground fails, then so must this claim. As at 5th October 2011, there was no extant permission authorising the construction of anything on the site of the building, nor its retention. If the Inspector's approach to the issue of substantial completion is not to be criticised, then a new enforcement notice could have been issued then so as to require removal of the building. But as at 2015, that is not the case. The building would have acquired immunity from enforcement since then, unless the 2008 Enforcement Notice is still effective.
25. I therefore regard it as necessary to set out my conclusions on the effect of section 180 of the Act and its application to this case.
26. I find much assistance from the thoughtful and careful approach of Lindblom J in Rapose. He was there dealing with a case where a local planning authority was seeking to exercise its powers under sections 178-9 of TCPA 1990 under an enforcement notice to remove an extension, whose walls had been shown as retained within a subsequently permitted (but unimplemented) much larger development covering a much larger site. I would refer to the following passages in his judgment.

"28 Section 180 of the 1990 Act serves to protect from proactive enforcement development which is the subject of an extant and valid enforcement notice, if and to the extent that the retention of that development is not inconsistent with a subsequent grant of planning permission. The statutory language is clear. The effect of this provision in the legislation is to cancel – not merely to suspend – the effect of an enforcement notice, but to do so to no greater and no lesser extent than the notice is "inconsistent" with a subsequent grant of planning permission "for any development". The notice is then to "cease to have effect so far as inconsistent with that permission". The protection afforded by section 180 is activated not upon the implementation of the subsequent planning permission but upon its being granted (as Hodgson J. emphasized in the Havering case (at p. 262). Section 180 does not stipulate that the site in respect of which planning permission is granted subsequent to the service of the enforcement notice must be the same as the site in respect of which enforcement action had been taken. Nor is the provision directed simply and solely at the situation in which planning permission is later granted for precisely the same development as is the subject of an enforcement notice. Nor again, as a matter of principle, does it make a difference to the overriding effect of the subsequent grant of permission that conditions restricting or regulating the development are imposed on that permission. As Hodgson J. observed in the Havering case (at p.262), any failure to comply with conditions on the permission can be addressed by separate enforcement action, which under the 1990 Act could now, in an appropriate case, take the form of a breach of condition notice (section 187A of the 1990 Act). In these basic respects there is no distinction to be drawn between planning permissions for changes in the use of land and permissions for operational development. If a local planning authority serves an enforcement notice to attack the use of a site and that use is later approved by a grant of planning permission, the enforcement notice will be inconsistent with the planning permission and will no longer bite on that use. Likewise, if an enforcement notice attacks operational development and the local planning authority, or the Secretary of State on appeal, grants planning permission for only a part of the works comprised in that development, or for those works or a part of them within a larger and more extensive scheme, the question that arises under section 180 is whether or not, and if so to what extent, the enforcement notice is inconsistent with that permission.

29 For the purposes of the present case the critical words in section 180, as Mr Taylor" (counsel for Mr Rapose) "has submitted, are "so far as". These words make it clear, among other things, that it is not necessarily a completed development to which section 180 relates. In my judgment, the main question to be considered here is not, as the Council appeared at least originally to contend, whether the 2003 planning permission did or did not permit the unauthorized extension to be retained on its own, but whether there are elements of development common to both the permission and the enforcement notice. As Mr Taylor submitted, if there is fabric which forms part of that which the planning permission approved, the enforcement notice cannot thereafter be relied upon to attack that much of the development. Conversely, however, the enforcement notice continues to be effective against so much of the fabric as is not approved by the planning permission. In the present case, there are factors which point clearly to the conclusion that the 2003 permission partly cancelled the effect of the enforcement notice.

31 In the first place………………… to the extent that the application drawings showed development which was already on the ground, previously unauthorized as it was, the permission which embraced those drawings approved the retention of that development.

32 Secondly, it seems plain that there are parts of the development that had been attacked by the enforcement notice which are physically subsumed in the development for which the Council granted planning permission. This much is clear from the annotated drawings produced by Mr Williams as exhibits AW10 and AW11 to his witness statement, and from his description of the development approved by the 2003 permission and its relationship to the enforced against extension. What was actually built on the site clearly coincides to a material extent with what was proposed in the drawings submitted for approval in the August 2002 application and expressly approved in the subsequent grant. Paragraph 2.8 of Mr Williams' witness statement concedes that there is at least "some coincidence between some of the walls built and aspects of the development permitted by the June 2003 Permission", though he adds his view that this does not mean they have been granted permission. Mr Williams' drawings show that there is fabric – forming the L-shaped portion of the walls of the extension shown hatched on those drawings – that is comprised both in the development which the enforcement notice required to be removed and the development approved by the planning permission. As Mr Taylor submitted, a vertical structure rising to a height of 7.1 metres which has been erected on a particular alignment is consistent with a structure 9.7 metres tall erected on the same alignment. The difference in height does not signify that this part of the extension is not comprised in the development approved by the 2003 permission. This is, in principle, though of course the facts are different, the kind of situation with which the court was faced in the Chichester case. Applying the rationale of the decision in that case, which Roch J. found to be in accordance with common sense, one can readily appreciate that such fabric would have required some adaptation and further construction in order to incorporate it into the development for which the Council had granted permission, rather than being taken down in its totality only to be put up again on the same alignment and using the same or similar materials. As Roch J. said (on p.346), there is no need to demolish the original building constructed without planning permission in its entirety and then build a new building.

33 In my judgment, a conclusion in the present case consistent with the approach and outcome in Chichester is not prevented by the fact that the development approved by the 2003 permission was much larger than the unauthorized extension and would occupy a more extensive site, or by the fact that the roof on the development approved by the 2003 permission would be set at a higher level, supported on walls taller than those forming the unauthorized extension, albeit, at least in part, on the same alignment. I am unable to accept the submission made by Mr Ferris that the retention of these sections of wall cannot be regarded as being consistent with the development for which the Council gave approval in granting planning permission because they are not of the same height as the walls in the application scheme and so must be seen as constituting a wholly different element of structure. That submission does not in my view accord with the clear language of section 180. To the extent that the structure is common to the permission and the enforcement notice section 180 operates to prevent the enforcement notice from continuing to bite upon it. To that extent, the enforcement notice and the planning permission are inconsistent. This is the force of the words "so far as" in subsection (1) of section 180.

34 Nor can I accept the argument that section 180 has no bearing on the present case because the L-shaped portion of structure would have constituted only internal walling in the development approved by the 2003 permission, whereas it was a part of the external fabric of the extension. As Mr Taylor pointed out, when the 2003 permission was granted, at least part of the extension adjoined the neighbouring building. When that building was demolished, parts of the internal walls of the extension became exposed, but those parts of the walls would again be internal once the development approved by the 2003 permission had been completed. I do not think one can ignore the fact that the 2003 permission approved the whole of the development shown in the submitted drawings, including internal walls. It would not be correct, in my view, to ignore this fact when considering the effect of section 180 in the present case. To do so would be difficult to reconcile with the decision of the House of Lords in Sage v. The Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22 holding that, for the purposes of section 171B(1) of the 1990 Act, in considering the question of whether building operations are "substantially completed", it is not appropriate to adopt the criterion that such operations are complete when those activities which require planning permission are complete (per Lord Hobhouse of Woodborough (in paragraph 7); that what is substantial completion must always be decided as a matter of fact and degree; that in the case of a dwelling-house substantial completion would involve the carrying out of works essential for a completed dwelling-house (per Lord Hobhouse (in paragraph 20). Lord Hobhouse said (in paragraphs 23 to 25):

"23. When an application for planning consent is made for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: s.92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted this with a case where the building has been completed but is then altered or improved. … .

24. The same holistic approach is implicit in the decisions on what an enforcement notice relating to a single operation may require. Where a lesser operation might have been carried out without permission or where an operation was started outside the four year period but not substantially completed outside that period, the notice may nevertheless require the removal of all the works including ancillary works: Ewen Developments Ltd v Secretary of State for the Environment [1980] JPL 439, CA; Howes v Secretary of State for the Environment [1984] JPL 439, Hodgson J; Somak Travel v London Borough of Brent [1987] JPL 630 Stuart Smith J. …

25. These decisions underline the holistic structure of planning law … ."

Lord Hope of Craighead, agreeing with Lord Hobhouse, observed (in paragraph 7) that regard should be had to the totality of the operations originally contemplated and intended by the developer, which "will be an easy task if the developer has applied for and obtained planning permission."

35 …………………………………………………………………..

36 …………………………………………………………………..

37 ……………………………………………………………………..

38 …………………………………………………………………….

39 The Council's resolution under challenge in the present proceedings authorizes direct action against the whole of the extension. It seems that, when it so resolved, the Council's committee did not appreciate what the consequences of the operation of section 180 of the 1990 Act would be for its enforcement notice, given the grant of the 2003 permission. It was advised that the development in that permission had not been commenced. Perhaps it was for this reason that the committee did not grapple with the question of whether and to what extent there was congruence between the unauthorized extension and the corresponding parts of the development approved by the 2003 planning permission. At any rate, it does not appear to have asked itself whether, in view of the 2003 permission having been granted, the full rigour of the enforcement notice requirements would now have to be tempered to take account of the implications of that grant. This failure in itself, in my view, is sufficient to vitiate the Council's decision to proceed with action under sections 178 and 179 of the 1990 Act. The question of whether the enforcement notice was inconsistent with the planning permission, and the precise extent to which it was, were matters of fact and degree for the Council as local planning authority to determine, subject to review by the court on normal public law principles. There is enough in the material before the court to demonstrate that such an exercise was called for in this case, and that it was not undertaken. The action under sections 178 and 179 authorized by the committee's resolution would have had serious consequences for those affected. It was, therefore, important that the practical implications of section 180 for such action were properly understood and carefully considered. In my judgment, that did not happen here. The Council's decision cannot, therefore, be allowed to stand.

40 I recognize that there will be cases in which the consequences of the exercise which the Council has failed to perform in the present case will be unintended or artificial, or both. This case may be one. However, such consequences flow not from the court's decision but from a local planning authority having chosen to proceed as it did ……………"

27. Thus, Lindblom J was considering a case of the effect of a previous Enforcement Notice on parts of a building, which was to be demolished in accordance with the Notice, but shown as retained in a subsequent permission. It is implicit in the passage in Lindblom J's judgement in Rapose at [39] above about whether "the full rigour of the enforcement notice requirements would now have to be tempered to take account of the implications of that grant," that there is no rule that the steps in an enforcement notice have to be exercised in full for it to remain effective.
28. That coincides with what I take to be the policy approach which underlies the provisions. It is important to remember that the Planning Acts form a comprehensive code. It is worth recalling the words of Lord Scarman in Pioneer Aggregates (UK) Ltd v The Secretary of State for the Environment [1985] 1 AC 132 HL, where the issue before the House of Lords was whether it was possible for a planning permission to be abandoned by conduct. Lord Scarman (with whom the other members of the Appellate Committee agreed) held that there was no such general principle of abandonment in planning law. At page 140 Lord Scarman said this:

Planning control is the creature of statute. It is an imposition in the public interest of restrictions upon private rights of ownership of land. The public character of the law relating to planning control has been recognised by the House in Newbury District Council v. Secretary of State for the Environment [1981] A.C. 578. It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. The planning law, though a comprehensive code imposed in the public interest, is, of course, based on the land law. Where the code is silent or ambiguous, resort to the principles of the private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole.

Parliament has provided a comprehensive code of planning control."

29. In this area of that comprehensive code, Parliament has sought to avoid the anomaly of an Enforcement Notice being relied on so as to require the removal of building works (or other operational development or uses) which the planning control system has subsequently determined on the planning merits could properly be retained. But if the effect of the subsequent permission is to vitiate the enforcement notice in relation to those building works where the planning control system has determined that they should be removed, that would undermine another important part of the code.
30. It follows in my judgment that the approach urged on me by Mr Davis is flawed. It depends critically on the idea that the enforcement notice must either be capable of being acted upon in full or not at all. As is shown by Rapose that is unarguable.
31. In my judgement, the alternative approach advanced by Mr Davis for the Claimant here would lead to absurd and undesirable consequences. In an operational development case it is commonplace for an enforcement notice to require removal of the buildings erected in breach of planning control. In a case of an unauthorised material change of use, it is similarly commonplace to require its cessation on the whole of the site enforced against. Suppose, to take commonplace examples, that in an operational development case there was more than one unauthorised building: or that in an unauthorised use case there was a mixed use, or different uses on different parts of the site. If Mr Davis' approach was correct, a step in an enforcement notice requiring that all the buildings were demolished, would mean that if permission were granted subsequently to retain one of the buildings, it would then vitiate the effectiveness of the enforcement notice against the remainder. In an unauthorised use case, subsequent permission to carry on that use in one part of the site would similarly vitiate the effectiveness of the enforcement notice against the unauthorised uses on the remainder.
32. In the case of a single building, it would be unrealistic to expect the steps specified in the enforcement notice to be drafted with a view to a future planning application being made which, if granted, would permit retention of some but not all of the building. The steps specified in this Notice were entirely usual, and it is not suggested that in this case it was unreasonable for the Council to require the removal of a building which it had determined harmed amenity because it had an unacceptable roofscape and projected beyond the building line, and whose approach had been upheld on appeal in 2007. At the Enforcement Notice inquiry, only grounds (d) and (f) were pursued, ground (a) (i.e. that planning permission should be granted for the development to which the notice relates) being withdrawn by the Claimant at the outset of the inquiry. If Mr Davis' approach is correct, then a landowner can vitiate the effect of an Enforcement Notice directed at the unauthorised construction of a building, simply by obtaining a planning permission for the retention of a smaller and less intrusive building which includes part of its predecessor, but which the landowner then does not implement. That would create a device for the unscrupulous to bypass important aspects of development control.
33. Now of course in Rapose Lindblom J was considering whether to quash a decision by the local planning authority in the case to go ahead with works to demolish the building. The question for the local planning authority in that case was then whether the enforcement notice was inconsistent with the permission, which question it had not addressed properly. Assessment in this case, of the kind described by Roch J in R v Chichester JJ ex p Chichester DC, is straightforward, given the agreement on the straightforward facts. As it is accepted that the pitched roof and the area projecting beyond the building line were not to be retained in the development subsequently authorised, it is hard to see how it can be said that the demolition of those parts would be inconsistent with the permission. The detailed drawings attached to the permissions show precisely where the retained sections of the building are, and the intended roof line. Indeed the permissions applied for and granted in the light of the Enforcement Notice being upheld were designed to achieve the end of removal of that which was unacceptable (the pitched roof and projection beyond the building line), and retention of that which was acceptable. Indeed, examination of the Enforcement Notice decision letter shows that the Claimant sought to argue for such a modified scheme, but of course could not, given the terms of section 174(2)(a), which is why ground (a) was withdrawn. That is why a planning application was then required.
34. After all, as the other parts of the fabric were to be retained, but those in issue were not, then they would have to be removed anyway during the course of the building works. If the other parts of the fabric were not to be retained, then there is no inconsistency between the permission and the enforcement notice in any event.
35. Like Lindblom J, I recognise that the effect of s 180 in a case such as this may be to lead to unintended and/or artificial consequences. However in this case, that situation has come about largely because of the conduct of the Claimant. It has been her decision to obtain, but then leave unimplemented, permissions to achieve the proper solution on this site, which is of an extension of reduced height which does not project beyond the building line. She has failed in her attempts to persuade the authority and the 2007 Inspector that she should be able to retain the larger building.
36. I therefore conclude that had the Inspector addressed the effect of section 180 in the proper manner, he would have been bound to conclude in this case that the Enforcement Notice still required removal of the pitched roof and the projecting part of the extension.
37. Even if I had the power to make the declaration sought (which is far from clear) I would decline to do so.
38. I turn now to the second ground. It is perhaps unfortunate that neither Mr Davis nor Mr Ormondroyd had checked to see what happened to the enforcement notice decision letter in the High Court before Silber J (Nestorova-Goremsandu v Secretary of State for Communities & Local Government & Anor [2010] EWHC 793 (Admin). One of the attacks made was upon her conclusion at [20] that

" As a matter of fact and degree, and on the balance of probability, the extension did not exist for more than 4 years prior to the issue of the Notice but rather there is clear evidence of the extension being constructed in late 2005 and nearing completion in September 2007."

39. In reaching that conclusion as Silber J pointed out at [23] of his judgement,

"Finally she placed significant weight on the fact that an Inspector in 2007 had described the Extension as being "in an advanced state of construction". The Inspector noted that this was "indicative of an extension in the process of being constructed, as opposed to one which is having its roof and windows replaced" (DL16)."

40. While the reasons challenge in that case related to the rejection of the arguments that the extension had been substantially completed in 2002, and her conclusions that it was still under construction in 2006 (and therefore within 4 years of the enforcement notice), it is quite plain that the Inspector at the Enforcement Notice inquiry (whose Decision Letter was before me, and referred to in the Decision letter under challenge but not referred to in Counsel's submissions until I raised it) had considered matters in great detail.
41. The Inspector in the appeal in this case considered the evidence advanced by the Claimant. He considered it to be unreliable, untrue in parts, ambiguous, and contradicted by other evidence which he accepted. He was in my judgment entitled to have regard to the decision letters of both the 2007 Inspector and of the Enforcement Notice Inspector. He relied in terms at [4] on the latter's conclusion cited above at paragraph 38, which drew, as he had, on the observations of what the 2007 Inspector had said. That enabled him to make a finding that the building was not substantially completed as at September 2007. He then asked himself the question whether the Claimant had satisfied him that the works were substantially completed by October 2007 (see [20]) and concluded that she had not.
42. It is simply impossible to argue that his assessment of the evidence was not reasoned. He gave very clear reasons. He was not then required to go on and give reasons for his reasons. His reasons for concluding that there was no substantial completion by September 2007 mirrored those of the Enforcement Notice Inspector, whose decision letter had been upheld in this Court. The fact that he followed her conclusion was reason enough. He did not have to perform a Sage analysis of whether there had been substantial completion when there had been a clear finding by the Enforcement Notice Inspector on the point, upon which he was entitled to rely. His conclusion that the Claimant had not satisfied him as to the position in October 2007 was one which was open to him, and cannot be challenged.
43. It follows that the second ground fails, and therefore that this claim fails and must be dismissed.
44. On the first ground, while I accept that the Inspector had failed to address the tests in section 180 TCPA 1990 I do not accept that the Claimant's interpretation of it is sound, nor that its effects lead to the Enforcement Notice being ineffective so far as the parts of the building outside the scope of the planning permissions are concerned.
45. What happens next depends on whether there can be a sensible air of cooperation which would benefit the Claimant, the local planning authority, and those in the area where this building still makes its presence felt.