Enforcement notices, breaches of planning control and earlier permissions

The High Court has dismissed an appeal against an enforcement notice issued against redevelopment of a Hackney synagogue. Leon Glenister explains why.

In Meisels v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1987 (Admin) handed down last month, the High Court dismissed an appeal against an enforcement notice issued in respect of redevelopment of a synagogue on Filey Road in Hackney. The site benefited from a previous planning permission granted in 2006 and the question for the Inspector, and to the extent relevant for the Court, was whether the development now commenced was an implementation of that 2006 permission.

First, the Appellants argued that the Inspector had acted unlawfully in finding that a condition which had not been implemented, in relation to external materials, was a “condition precedent”. The Court considered the test in Hart Aggregates Ltd v Hartlepool BC [2005] EWHC 840 (Admin) was applied by the Inspector and he correctly considered whether the condition “goes to the heart of the planning permission”.

Second, the Inspector rejected the Appellants’ argument that the Inspector had reached an irrational conclusion in relation to when, on the evidence, the planning permission was implemented.

Third, the Court found the Inspector had lawfully considered, taking into account both similarities and differences, whether the development was so different to the plans which were granted permission that it was not an implementation of that permission. The Court recounted the need to read decisions without undue scepticism, and to the decision letter as a whole.

Fourth, the Court found the Inspector had acted lawfully in rejecting the ground (f) appeal on the basis that there was no obvious alternative scheme. If the Appellants had sought to suggest the as built development could be re-developed into the plans which had been granted permission, the Inspector lawfully decided the Appellants would have had to put forward a suitable scheme of modification.

Leon Glenister is a barrister at Landmark Chambers. He acted for the Secretary of State.