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Planning enforcement orders and mixed use

The High Court has handed down judgment in a “significant” planning case considering the scope of a planning enforcement order where there is a mixed use, writes Leon Glenister.

The written judgment is now available in Payne v Secretary of State for Housing, Communities and Local Government [2021] EWHC 3334, in which Lang J considered the scope of a planning enforcement order in respect of a single use where there is a mixed use. This matter had not come before the Court before, and the case was marked as a “significant” planning case.

In 2019, the council had obtained a planning enforcement order pursuant to section 171BA and 171BC of the Town and Country Planning Act 1990. Such an order can be obtained where the council is outside the time for enforcement but there has been deliberate concealment. The order was for a single change of use.

The council then issued an enforcement notice, however the council enforced against a mixed use, of which the single use in the PEO was part. The Inspector considered that the appropriate planning unit was wider than the single use which formed the subject of the PEO and, because there was mixed use across the planning unit, it was permissible to enforce against the mixed use.

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The Court found that “apparent breach” which permitted enforcement action by the council was only the breach identified in the PEO. In the present circumstance, a PEO in respect of a single use did not permit enforcement outside the time limits for other uses forming part of an overall mixed use.

However, the Court accepted the Secretary of State’s argument that the Inspector had lawfully concluded the change in use occurred in 2011 and therefore enforcement against the mixed use was in time, and this issue was immaterial to the overall conclusion. Therefore the claim failed.

The judgment is available here.

Leon Glenister is a barrister at Landmark Chambers. He represented the Secretary of State, instructed by Noor Halawi of GLD.

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