Planning enforcement and lawfulness cases

In line with the old adage about waiting for a bus, those of us who regularly deal with the many and varied implications of enforcement notices as well as their sister instruments , lawful development certificates, have been waiting for a while for the Courts to get their hands again on the relevant provisions in the TCPA 1990…and then four really meaty decisions come along at once, three of which are from the Court of Appeal!

I deal first with the Court of Appeal’s decision in Dharmeshkumar v SSHCLG [2026] EWCA Civ 247. This relates to the approach to be adopted to challenges to or rather appeals from s174 enforcement appeals under s289 of the Town & Country Planning Act 1990 (‘the 1990 Act’), more specifically appeals to the Court of Appeal following a High Court decision of such a challenge.

It may be recalled that even though permission is required to proceed with an appeal against a s174 decision, unlike a challenge under s288 (which also requires permission to proceed), there is no right to appeal to the Court of Appeal against that refusal of permission (see Binning Property Corporation Limited v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 250; [2019] J.P.L 844).

The case of Dharmeshkumar principally revolves around an anomaly arising out of two conflicting statutory provisions and the Civil Procedure Rules (‘CPR’) which relate to which Court should be involved in considering an application to appeal a s289 decision from the High Court to the Court of Appeal and what the appropriate test is for the grant of such permission. The provisions are s289(6) of the 1990 Act and s55 of the of the Access to Justice Act 1999 (‘AJA’) together with CPR 52.6 and 52.7.

If an appeal from a High Court s289 decision qualifies as a ‘first appeal’, permission may be granted by either the High Court or the Court of Appeal where the court considers that appeal to have a real prospect of success or there is some other compelling reason for the appeal to be heard. If it is a ‘second appeal’, permission may only be given by the Court of Appeal and the test for the grant of permission is stricter. The Court of Appeal in the latter circumstances must be satisfied that the appeal has a real prospect of success and raises an important point of principle or practice; alternatively, that there is some other compelling reason for the Court of Appeal to hear the appeal.

The appellant duly obtained permission to appeal the Inspector’s decision to dismiss his appeal under s174 of the 1990 Act (as well as the Inspector’s costs decision) but when both appeals were refused by the judge the appellant sought permission to appeal this decision from the Court of Appeal. What therefore was the right test to be applied? Is it the first appeal test or stricter second appeal test?

S 55 of the AJA addresses second appeals confirming the stricter two-part test above for the grant of permission to appeal to the Court of Appeal ie “the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court of Appeal to hear it”.

It was a matter of agreement that s289(6) provides for permission to appeal to the Court of Appeal and Holgate LJ in the Court of Appeal agreed with the appellant that it is “plain” that it “provides for permission to appeal to be obtained either from the High Court or the Court of Appeal” [39]. However, Holgate LJ also found it was “equally plain that an appeal to the Court of Appeal falling within s.55(1) of the AJA 1999 can only be brought with the permission of the Court of Appeal itself, not of the High Court or of another court” [idem].

Holgate LJ, having identified this “head-on conflict between these two provisions”, confirmed it “can only be resolved by one or other of two responses: either the two provisions apply in combination, or one provision must apply instead of the other.”

Applying Smith International Inc v Specialised Petroleum Services Group Limited [2005] EWCA Civ 1357; [2006] 1 WLR 252 which dealt with similar conflicting provisions and the principles on implied repeal set out in in Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited [2001] QB 388 at pp.401H-403D, Holgate LJ confirmed that s289 “forms part of a specific, detailed and relatively self-contained code dealing with appeals against enforcement notices and appeals to the High Court and above”. In his view s 55(1) of the AJA 1999 did not act impliedly to repeal the relevant part of s.289(6) to remove the High Court’s power to grant permission to appeal to the Court of Appeal. As such he concluded, s55(1) does not apply to decisions by the High Court or Court of Appeal on whether to grant permission to appeal to the Court of Appeal under s.289(6) and hence the stricter test does not apply to such appeals from the High Court (even though they may be ‘second appeals’).

Equally Holgate LJ rejected the Respondent Secretary of State’s arguments that the CPR meant the stricter test applied even if s55 of the AJA does not apply, as well rejecting the submission that a different stricter approach to s289 appeals should be adopted by the Court of Appeal in any event.

Turning then to Leigh v SSHCLG [2026] EWHC 537 (Admin), which also involved the deployment of novel arguments about the meaning of relatively familiar provisions, Tim Smith, sitting as a Deputy High Court Judge, confirmed that the relevant date for determining whether an enforcement notice was “then in force” in applying the test for lawfulness under s191(2)(b) of the 1990 Act , was the date the application for the certificate was submitted, not the date when immunity from enforcement action would have arisen under s.191(2)(a).

The claimant in this case argued at an oral permission hearing that, even though an enforcement notice existed and had not been appealed, which required the removal of the subject operational development, a lawful development certificate should be granted on the basis that the evidence showed the operational development had been substantially completed before the enforcement notice had been issued.

At the heart of the case was the argument that when section 191(2)(b) refers to development contravening the requirements of any enforcement notice “then in force” being unlawful, the “then” means the point in time at which immunity from enforcement action became available (per section 191(2)(a) ) and not the point in time at which the application for the certificate was submitted.

This was rejected by the Deputy HCJ who relied upon Holgate J’s (as he then was) judgment in R (Ocado Retail Limited) v Islington London Borough Council [2021] PTSR 1833 [146] which states that “Parliament did not wish an extant enforcement notice (or breach of condition notice) to be negated by the subsequent application of a time limit in s.171B to something which contravened the requirements of that notice”.

It should be noted that the Inspector had applied both parts of s191(2) and agreed that there was evidence to demonstrate that the operational development had been completed in excess of four years prior to the issue of the enforcement notice, however it was clear that is not the full test and, what is more, s191(4) makes it plain that lawfulness must be assessed at the date of the application for the certificate.

It is a sharp lesson in the consequences of the failure to appeal an enforcement notice.

Turning then to R (Moran) v Medway Council [2026] EWCA Civ 484 this is a case again where the consequence of an existing enforcement notice provided a complete answer.

Other than a successful appeal or a decision by an authority to withdraw an enforcement notice the only other way to overcome the provisions of an enforcement notice is to seek planning permission for any matters that may be “inconsistent” with the notice. S180 confirms that the notice “shall cease to have effect to the extent that it is inconsistent with the permission granted”. S70 C of the 1990 Act however provides that if such permission is sought the planning authority has a discretion to reject the application and not determine it.

S70C has been the subject of a series of High Court decisions (namely R (Wingrove) v Stratford on-Avon District Council [2015] EWHC (Admin) 287; R. (oao O’Brien) v South Cambridgeshire DC [[2016] EWHC 36 (Admin); R (oao Seventeen De Vere Gardens (Management) Limited) v Royal Borough of Kensington and Chelsea [2016] EWHC 2869 (Admin); R. (oao Banghard) v Bedford BC [2017] EWHC 2391 (Admin) and R (Chesterton Commercial (Bucks) Limited) v Wokingham Borough Council [2018] EWHC 1795 Admin), [2019] PTSR 2020). Dove LJ in his judgment in Moran helpfully reviewed these and the principles which flow from them with particular regard to the purpose of s70C and how it is to be interpreted.

The case itself involved a long planning history of attempts to obtain permission for use of a site as a residential caravan site for Gypsies following the issuing of an enforcement notice. The notice had not been appealed, and the local planning authority had, relying upon s70C (some seven times) rejected a series of subsequent attempts to seek permission for various but related forms of development made by the previous owners and others. The authority had also taken direct action by way of an injunction and a subsequent committal order, and the site had been cleared in accordance with the terms of the notice. The appellant had purchased the site and carried out fresh works as well as making a further attempt to obtain permission for change of use to “residential use accompanied by the siting of caravans and mobile homes together with the construction of four-day rooms and a stable building”.

Once again, the authority rejected the application in reliance upon s70C.

The appellant challenged this decision, having argued, inter alia, at the application stage that there had been no opportunity to test the planning merits of the appellant’s development and pointed to the fact that the notice had been complied with prior to his development (an argument put forward in Wingrove).

The appellant argued before the High Court and the Court of Appeal that the purpose of s70 C is to defeat attempts to delay enforcement action, consistent with the conclusions reached by Cranston J in Wingrove. Where enforcement action had been taken and effectively ‘completed’ therefore the claimant argue it should not apply. In addition, the appellant argued but that its purpose was not simply to avoid a site owner or developer from having two separate opportunities for the underlying merits of the breach of planning control comprised in an enforcement notice to be considered (flowing from O’Brien and Banghard: the ‘two bites of the cherry” argument). This, it was argued, was not what the appellant’s application should be categorised as.

In addition, the appellant argued that the authority was required to consider the planning merits of the development in reaching its conclusion and had failed to take into account or failed properly to address certain matters which were argued to be material to the decision, namely, evidence of the need for Gypsy and Traveller sites properly; flood risk issues and the fact that there had been no statutory objections to the proposed application.

With regard to s70C Dove LJ, having reviewed the relevant s70C authorities, rejected the grounds of appeal confirming the following [54-56]:

i) On a straightforward understanding of the statutory language of s70C, it was clear that it applied to the circumstances of the case. This was because the application sought permission for “the matters specified in a pre-existing enforcement notice as a breach of planning control” (as per s70C (1). Dove LJ stated that “there is nothing in the language of the section which suggests that the section could not apply in circumstances where the enforcement notice has been complied with or direct action has been taken by the local planning authority to rectify the breach of planning control. The section does not preclude reliance upon it in circumstances where the planning application is prospective”.

ii) The fact that the development may have occurred in the past and been the subject of successful enforcement action as well as the breach having then be remedied, did not assist the appellant. Dove LJ stated that the “scheme of the enforcement provisions of the 1990 Act are clearly designed, working as a whole, to ensure that where it is expedient in the opinion of the local planning authority breaches of planning control are stopped, removed and not reinstated. Thus, the use of the term “retrospective” does not affect an understanding of the plain meaning of the section”.

iii) The purpose of s70C was ‘clear’ in Dove LJ’s view. He concluded that it is “designed to enable a local planning authority to decline to determine an application for planning permission in respect of either the whole or part of a breach of planning control at a parcel of land which has a pre-existing enforcement notice issued in respect of that breach of planning control. It prevents a duplication of the consideration of the planning merits of the breach of planning control which is the subject of the enforcement action unless the local planning authority are prepared for that to be undertaken. The potential for the occupier of the land subject to the enforcement notice to insist upon more than one determination of the planning merits of the breach of planning control is in my view clearly the mischief which section 70C is aimed at and prevention of that is its statutory purpose”.

Dove LJ identified the two principal questions that need to be asked in applying s70C (1) was there a pre-existing enforcement notice? (2) if so, did the application seek permission for development which included development identified as a breach of planning control in the pre-existing enforcement notice? If the answer to each is yes then the local planning authority has a discretion as to whether to decline to consider the application, or to accept it and determine it on its merits.

In addition, Dove LJ held that the authority had in fact considered Gypsy and Traveller site need and that the other issues raised were not material to the decision under s70C in any event.

Finally we return to s191 of the 1990 Act and what was described by Holgate LJ at the very opening of his judgment as the “most unusual case the circumstances of which, it is to be hoped, are unlikely to be repeated”: R (Ocean One Hundred Ltd) v New Forest National Park Authority [2026] EWCA Civ 493. This was a judicial review involving bias and a decision by the authority’s Board of members to revoke a CLEUD under s.193(7) of the 1990 Act.

The appeal was principally successful in respect of apparent bias displayed by the officer’s report but in the course of considering the exercise of the revocation powers Holgate LJ set out clear and helpful guidance.

The case in fact involved a number of unusual aspects.

The first was that the subject CLEUD which had been issued by the authority (‘the NPA’) went far wider than that which had been applied for without any obvious reason. The details of the CLEUD application which were available (many of the relevant documents had in fact disappeared) are set out in the judgment at [64]-[91]. The applicant, it was found, had sought a certificate in relation to a part of a site but the CLEUD was issued in respect of the whole site. In addition, the use that the applicant wanted to confirm as lawful was the storage of caravans (of which there were about 20) (adjacent to bungalow in which he lived). By contrast the CLEUD as issued identified the lawful use as being that of “a caravan site” which applied to the whole site save for the small area the applicant had originally identified. The use of that smaller area was identified as storage of touring caravans. The use of that smaller area was identified as storage of touring caravans. As reflected in the judgment, there was evidence that the notion that the wider site was lawfully in use as a caravan site came from an assertion by the applicant at the time that he had permission for such use. This was however not correct (there was an appeal decision showing that caravan club use]. The NPA, despite it clearly being open to check this, appeared to accept that it was. It was asserted subsequently by the relevant officer that the CLEUD application itself contained this claim.

The second unusual aspect that Holgate LJ drew attention to was the fact that the NPA had lost or destroyed a number of documents in its files relating to the application for the CLEUD. This included file notes of a site inspection and communications between the applicant and NPA CLEUD team concerning information about the application which had not been retained. The records that were available had been gathered by a different NPA team responsible for taking enforcement action (which the NPA pursued against the new owner and appellant who had commenced use as a mobile home park). [1]

The third unusual aspect is at the heart of the matter. A local resident, the then Official Verderer of the New Forest, put forward a case to the NPA for it to revoke the CLEUD and there was evidence in effect of a local ‘campaign’ by local residents who objected to the use of the site as a caravan park supporting the revocation. These campaigners were approached to provide information and there was a considerable degree of communication between the relevant officer at the locals as well as the Verderer applicant. The Court of Appeal found that the NPA had adopted an approach it considered appropriate, but which involved the promotion of the case for revocation and to gather evidence for that purpose. Whilst this specific approach was not found itself to be unlawful it meant that the officer writing the report and assessing whether the CLEUD should be revoked needed to take particular care and in this case the officer’s conduct during the process, including the sharing of drafts of his report for comment by the complainant Verderer, Lord Manners, which helped give rise to the appearance of bias.

This conduct together with the relevant officer’s recommendations in favour of the revocation to the NPA’s board of councillors led to the ultimate finding of the appearance of bias (in accordance with Porter v Magill [2001] UKHL 67; [2002] 2 AC 357. The nature of this report had in fact been criticised by Jay J in the court below (albeit he concluded that its failings did not vitiate the Board’s decision on behalf of the NPA) and the Court of Appeal agreed with those criticisms. In particular, as noted at [95], Jay J had found that on a review of the information available “… it is highly unlikely” that the CLEUD applicant had told the CLEUD officers “that the touring caravan site covered the whole of the Site” which was the statement or misstatement at the core of the application “and later documentation supports that view.”

However Holgate LJ disagreed with Jay J’s subsequent analysis that a representation within the CLEUD application form about the applicant’s understanding of the wider use of his land (and which the NPA asserted it relied upon to grant the wider CLEUD despite the rest of the wording of the application) was a relevant misstatement in respect of the revocation decision. Holgate LJ specifically found that “the scope of the application for a CLEUD was a material consideration which the NPA had to take into account when deciding whether the power in s.193(7) could and should be used” as such whether a material misstatement had been made or material information had been withheld in completing the CLEUD application “needed to be considered having regard to the CLEUD for which [the applicant] was applying”.

Holgate LJ’s judgment sets out in detail a number of relevant aspects within the officer’s report which the officer either failed to draw the Board’s attention to but also a number of inferences and assertions that the officer said could be made which were not properly based or correct in fact and law.

The Board had accepted the recommendations and duly revoked the CLEUD stating only that its reasons were contained within the said officer’s report and nothing more. The fact that these were the only reasons provided by the NPA in effect meant that the bias in the report ‘infected’ the decision.

As set out in the judgment the power under s.193(7) of the1990 may only be exercised if the local planning authority is satisfied that, “on the application for the certificate (a) a statement was made or document used which was false in a material particular; or (b) any material information was withheld”.

The procedure to be adopted is contained in Article 39(15) to (17) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No. 595) which includes inter alia the giving of notices and the opportunity for the relevant landowner or occupier to make representations.

Holgate LJ confirmed at [34] however that the “general procedural rules of this nature are not exhaustive of the requirements of procedural fairness or other public law requirements which may arise on the facts of a particular case” (see e.g. Bank Mellat v HM Treasury (No.2) [2013] UKSC 39; [2014] AC 700, 777 at [35]; Hopkins Developments Limited v Secretary of State for Communities and Local Government [2014] EWCA Civ 470; [2014] PTSR 1145 at [62]).

He then drew attention to the fact that it is clear (as set out in his earlier judgment in Ocado (see above) [61]-[73] )when applying for a CLEUD that the “onus lies on the [applicant] to demonstrate to the civil standard that a change of use without planning permission has become lawful ([61]). If the LPA is not satisfied with the adequacy of the information provided by the applicant, then it may refuse the application [64]. Care needs to be taken in the drafting of an application because of the risk of revocation and/or criminal prosecution at any time thereafter [67]. In making an application an applicant assumes a risk of revocation on the grounds set out in s.197(3), which risk passes to or affects successors in title. That risk is likely to increase where an applicant takes a minimalist approach to the provision of information to support his application [71].”

Holgate LJ then set out at [35] the relevant procedure to adopt with regard to an application to revoke as follows (referring to Ocado):

1) The power to revoke may only be used on one or both of the grounds set out in s.193(7). It may not be used because the LPA wishes to revisit the merits of the application or has changed its mind about the findings of fact it made or the inferences it drew [81], nor may it be used to correct an error of law in the determination of the application under s.191 [103].

2) The power may be exercised by an LPA at any time. It is not subject to confirmation by the Secretary of State or a right of appeal and does not give rise to a right to compensation [82].

3) The first ground for revocation (s.193(7)(a)) lays down an objective test, that the statement in question was false, in the sense of incorrect. It does not also require that the maker of the statement knew it to be false or was reckless in that regard [84]

4) The withholding of material information under s.193(7)(b) also involves an objective test. A withholding may be accidental, mistaken, careless or reckless. It does not have to be deliberate. Ground (b) in s.193(7) does not depend upon the subjective intention of the applicant ([85]-[92]).

5) The terms “in a material particular” and “material” (which appear in s.193(7) and in s.194(1)) refer not only to the relevance of information withheld or falsely stated but also its significance, in terms of whether, if the false statement had not been made or the information withheld, the LPA could (not would) have refused to grant any CLEUD or could have granted the certificate in different terms ([93]-[99]).

6) The LPA must direct itself correctly on the on the relevant legal principles. Where a LPA’s identification of a false statement or withheld information does not involve an error of law, its evaluative judgment on “materiality” can only be challenged if irrational or on some other public law ground ([101]-[102]).

In addition s193(7) “requires the LPA to be satisfied that a statement was made or a document used which was materially false, or that material information was withheld, “on the application for the certificate”. It is therefore necessary for the LPA to consider whether the false or withheld information is material in relation to the application, including the application form as signed by the applicant for the CLEUD. Accordingly, if there is an issue as to what a s.191 or s.192 application was for, the LPA will need to resolve that question (unless perhaps the case is one where the grounds in s.193(7) are satisfied however that issue might be resolved)”. This latter issue was as noted above a point in this case.

There were a number of grounds which the appellant sought to rely upon, and it is notable that it was successful only on the one dealing with apparent bias. The facts around this, which I have only really briefly touched on, are an unhappy tale of strong local feelings and politics which serve to undermine the lawfulness of an authority’s actions and with which practitioners may be familiar (although the detail may be of interest in terms of showing where such conduct oversteps the line). It is also interesting to note Holgate LJ’s surprise that record keeping was poor in this case when again it is something with which I suspect many of us unfortunately familiar. It is a salutary tale of those acting on all sides.

I end with Holgate LJ’s summary at [165]:

165. I return to my observation at the beginning of this judgment that this is a most unusual case. It remains a mystery as to why the CLEUD was granted in terms which, on one view, were much broader than the scope of the application and why this was not queried or challenged at the time. There is uncertainty as to what information [the CLEUD applicant] provided while his application was under consideration and what information was obtained by the NPA’s officers. Unfortunately, documents which could have thrown light on these and other questions have not been retained, assuming, of course, that they were created in the first place. When it came to the process for gathering information and representations on a proposal to revoke the CLEUD and for the taking of the decision itself, this unusual set of circumstances required careful handling. Although the officer directing the process was entitled to gather information from local residents as well as from the current landowners, he had to remain above the fray. Given that the issue was whether the landowner’s certificated planning rights should be removed, the officer had to avoid behaving in a way which appeared partisan. He had to remember that in due course he would need to present an objective report addressing all the matters which had to be considered by the Board. Regrettably that did not happen and there plainly was an appearance of bias on the officer’s part which tainted that report and the reliance upon it by the members of the Board.”

This article was first published in the 39 Essex Chambers Planning, Environment and Property Newsletter and was written by Celina Colquhoun, one of the contributing barristers.

[1] Which was appealed but held in abeyance and undetermined at the time