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Another bite at the cherry

Roderick Morton reports on a case involving the application of s174(2A) and (2B) TCPA 1990 as considered in Manchester City Council vs SSLUHC and Kousar [2022] EWHC 1062 Admin.


These provisions prevent a ground (a) appeal being brought against an enforcement notice which is issued while a related retrospective planning application remains undetermined. These sections are the enforcement flip side of s70C, the LPA’s power to decline to determine an application where there is an existing enforcement notice. The two parts of the legislation are intended to complement each other and are aimed at preventing the same development being considered in multiple forums.

Planning permission was sought in relation to an existing single dwelling for an extension at first floor level, a rear dormer and loft conversion and the change of use of part of the ground floor to a shop. The council added to the application description that the extension and dormer were to create a 3-bed duplex flat, said to be a change of use. The extension and dormer had already been constructed and the application was retrospective to that extent; the changes of use had not yet taken place. Before the application was determined, the council issued an enforcement notice against the extension and dormer. The notice required removal of the development and reinstatement of the former roof and walls. The planning application was dismissed the following day.

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The appellant appealed the enforcement notice but not the planning refusal. The notice was appealed on grounds (a) and (f). As part of the enforcement appeal, the appellant presented a smaller extension scheme designed to comply with PD limits; this was described as a fall back which could be carried out without permission. The appellant sought to present the differences between the “as built” scheme and this fall back as minimal.

The council objected to the enforcement appeal on the basis that s174(2A) prevents a ground (a) appeal where the notice is issued while a retrospective “related application for planning permission” remains undetermined. S174(2B) defines a “related application” as being one which would involve “granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control.”

PINS rejected the council’s objection on the basis that the planning application was wider than the enforcement notice as it included the change of use of the house to a 3 bed duplex flat. It was not therefore a “related application” and the enforcement appeal could proceed. The council challenged that decision in the High Court under s289.

There have been several cases in the last few years looking at the effect of the s70C power to decline to determine applications, including Banghard and Chesterton Commercial. See our 2018 NAPE newsletter articles reproduced here and here. These cases established the position that the s70C power is wide; the application need not cover exactly the same development as the enforcement notice. If there is any overlap at all between the enforcement notice and the planning application, it is enough to engage the s70C power to decline, though the council must then consider the exercise of the power carefully. They also establish the principle that an appellant must be offered at least one opportunity to have planning merits tested on appeal (described in the cases as “at least one bite at the cherry”).  But where an appeal against the enforcement could have been made but wasn’t (or an individual point could have been raised at enforcement appeal but wasn’t), the cherry has been bitten and it is appropriate for the council to decline the application.

Against this background, PINS can be forgiven its view that an interpretation of the s174 power which allowed the enforcement appeal to proceed and gave the appellant her “bite at the cherry” was appropriate.

But the judge held otherwise, finding that it was enough for s174(2B) that the planning application sought permission for all the matters in the enforcement notice; that it went further did not stop it being a related application. In this case, the retrospective planning application covered both the extension and dormer and, as it sought permission for everything in the enforcement notice, so the ground (a) appeal was barred.

PINS placed much weight on the argument that the PD fall back could not have been raised within the planning application because there is no PD for extensions where there is a mixed use.  It could be raised in the enforcement appeal as the notice (and therefore the appeal) related to the operational development only. As the arguments that would be advanced would be different in each appeal, the appellant would be denied her bite at the cherry if the enforcement appeal did not proceed. The judge held that this could not override the natural meaning of s174(2B). He was, in any case, not convinced that the fall back could not be raised within the planning application.

PINS also suggested that application of the legislation is a matter of planning judgement. The judge ruled that there was no judgement element; PINS only needed to consider whether the application covered everything in the enforcement notice.

The appeal was therefore allowed.

The appellant in this case would, it seems, have been better advised to appeal the planning refusal rather than the enforcement notice. That she didn’t means she missed her bite at the cherry.

As with Chesterton, the judge in this case emphasised the need for strict interpretation of the statute. We will presumably now see a stricter approach to s174(2A) from PINS and that is welcome. But the corollary is that any s70C decision is made more difficult.  The power may be engaged but the exercise of the discretion will need to take into account this strict interpretation of the limits on ground (a) appeals. 

Roderick Morton is a partner in planning enforcement law firm Ivy Legal

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