20th November 2018

Court of Appeal gives clarity on “over-enforcement”

Mr Oates of Hoath Farm, Bekesbourne Lane, in Canterbury owned land including three former chicken sheds, which had been divided into six units and converted from agricultural use to offices (in Use Class B1) under an express grant of planning permission from Canterbury City Council. Following the implementation of the permission, Mr Oates proceeded to further change the use of the buildings by relying on permitted development rights under Class J of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, as amended (GPDO). This allows the “change of use of a building and any land within its curtilage to a use falling [within] Class C3 (dwelling houses) … from a use falling within Class B1 (a) (offices)”. There is no provision within Class J for any operational development, and yet to facilitate the conversion of the units, significant external works were required.

As a result of these works, an enforcement notice was issued by Canterbury City Council on 22 August 2016. It alleged a breach of planning control by the erection of three "new buildings" on the site of three former chicken sheds and required the total demolition of those three "new buildings". Following an appeal to the Planning Inspectorate, the enforcement notice and its requirements were upheld. This decision was upheld by a judge in the High Court. In appealing against the latter ruling, it was argued that the council’s insistence on the complete demolition of the “new buildings” went beyond what was required to correct the breach of planning control.

In front of the Court of Appeal Mr Oates argued that it was a case of "over-enforcement" by the council. Specifically, the requirements of the notice interfered with his established right to retain and use those parts of the original buildings that remained on the site.

In issuing their judgment rejecting the appeal, the Appeal Court found that an original building need not be demolished in order for it to become a new building. It is relevant what the extent of the works carried out means to the original buildings and, in this case, the works were sufficient to mean that they had "ceased to exist", and had been replaced by new ones. Although the new dwellings were partly composed of the remains of the original buildings, when viewed as a whole the buildings against which enforcement action was taken were created unlawfully.

This case highlights two very important points. First, defending enforcement action can be challenging. It remains a fundamental tenant of the planning system that “planning judgement” is a matter for the decision maker. As a result any grey areas in an appeal will firmly belong to an inspector. In order to challenge that decision it is necessary not to show that the inspector is wrong, but actually that the inspector could not have reasonably reached the conclusion that they did. This is a high bar to overcome.

Second, when seeking to rely on Permitted Development rights it is vital to acknowledge the limits of those rights. That means ensuring that any prior-notification or prior-approval requirements are dealt with as well as complying with the conditions of the GPDO and, vitally, recognising what development is permitted and what is excluded as the right to change the use of a building will not necessarily include the right to undertake operational development unless it is expressly stated to do so. Taking advice on those limits at an early stage can be the difference between success and failure.

If you want to discuss planning enforcement, permitted development rights, or any other planning issue, please contact Fred Quartermain on 0117 930 9572 or fquartermain@thrings.com

The Court of Appeal Judgment is available here.

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