Court of Appeal finds for developer in planning enforcement case

A planning inspector erred when he dealt with a case of planning enforcement in Hackney, the Court of Appeal has ruled.

In Ahmed v Secretary of State for Communities and Local Government & Anor [2014] EWCA Civ 566 developer Mahfooz Ahmed had gained permission in 2005 to demolish a building in Stoke Newington High Street and replace it but constructed something larger than was allowed in the original planning permission.

Hackney Council served an enforcement notice and Mr Ahmed argued that the requirement to “permanently and completely remove the unauthorised four storey building from the site” was excessive given that all that was required to make the development acceptable was to reduce its size to comply with the approved scheme.

But the planning inspector refused to accept this, arguing: “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 these 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 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.”

Mr Ahmed appealed to the High Court where a judge said he could “see no reason in logic or principle” for this and that 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 [notice], as requested by the appellant…and at the same time granting retrospective planning consent”.

The Secretary of State for Communities and Local Government then appealed against this ruling, arguing that the inspector did not have the power to grant planning permission for the 2005 scheme, and that even if he had, he did not err in law in failing to consider the possibility.

Giving the judgment of the Court of Appeal, Lord Justice Richards ruled that the inspector would have had power to grant planning permission for the 2005 scheme and to vary the enforcement notice accordingly if, having considered the possibility, he had judged the 2005 scheme to be a ‘part’ of the development as built.

Mark Smulian