Council wins re-hearing of planning inspector’s decision to revoke enforcement notice against school

The London Borough of Brent has successfully appealed to the High Court against a planning inspector’s ‘out-of-time’ revocation of an enforcement notice against a school providing parking spaces for Wembley stadium events because the inspector failed to consider the council's argument that a material change of use of the land through intensification had occurred in 2016.

The council originally took enforcement action in 2017 against Oakington Manor Primary School in Wembley for a material change of use from a school to a mixed use as a school and a car park not ancillary to the use as a school.

The school appealed against the enforcement notice to the planning inspector on the grounds that it had been providing the ancillary parking continuously for more than 20 years. In the case of a breach of planning control consisting of the making of a material change in the use of land, s.171B(3) of the Town and County Planning Act 1990 states that: "no enforcement action may be taken after the end of a period of ten years beginning with the date of the breach".

In its response to the planning inspector, Brent Council pointed out that Wembley Stadium had been closed from 2000 to 2007 while it was being rebuilt – which it argued amounted to cessation of use - and that the new stadium had not been open for 10 years at the time that the enforcement action was taken.

In evidence at the appeal, the council also argued that the scale of use of the site as a car park had substantially increased in the run up to the enforcement notice, from 70 cars to around 300 for some events. This, it argued, represented a material change in the use of the site and justified the enforcement action taken.

However, the parties disagreed on when the ‘intensification’ of the parking at the school commenced. The school argued that the intensification began from the date that the new stadium open in 2007, i.e. more than 10 years before the council began enforcement.

The council argued to the planning inspector that it began with the temporary move of Tottenham Hotspur football matches to Wembley in 2016, less than ten years before enforcement action was taken.

The planning inspector agreed with the school and allowed its appeal.

Brent Council appealed the inspector’s decision on the grounds that the inspector had failed to ‘grapple’ with the extent of the parking intensification at the school. When the rebuilt stadium opened in 2007, approximately 60 cars were using the school for parking but following the move of Tottenham Hotspur games to the stadium in 2016, this number had increased to 300.

This, the council agued, represented a second material change of use and meant that its enforcement notice was in time. However, it said that the planning inspector’s decision letter only focused on the change of use in 2007 when ruling on the school’s appeal.

In upholding the council’s appeal, the judge Neil Cameron QC said that there was no evidence in the inspector’s decision letter that she had considered Brent’s argument that a second material change of use had occurred in 2016 and that the council’s final submissions to the inquiry, albeit made after the evidence had been heard, had made it sufficiently clear that this formed part of their argument. Therefore, the judge ruled that the decision of the planning inspector was made in error and that the inquiry should be re-heard.

The judgment said: “One of the advantages of determining a planning appeal (including an enforcement notice appeal) by holding an inquiry is that an inspector can ask for clarification of issues when submissions are delivered orally. Further the School, as appellant, had the last word and could have responded to the Council's submission. Given the procedure adopted, any unfairness arising as a result of the Council putting its case in a different way in its closing submissions was capable of being overcome.”