Arnold & Anor v Secretary of State for Communities and Local Government & Anor [2017] EWCA Civ 231

[2017] EWCA Civ 231

Case No C1/2015/1647

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2015] EWHC 1197 (Admin)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JUSTICE DOVE

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31 March 2017

Before

Lord Justice Davis

Lord Justice Lindblom

Between

Craig Arnold (2) Gaynor Arnold Appellants- and -(1) Secretary of State for Communities and Local Government (2) Guildford Borough Council Respondents

Mr Richard Turney (instructed by Mishcon De Reya LLP) for Appellants

Mr Ryan Kohli (instructed by the Government Legal Department) for First Respondent

for The Second Respondent did not appear and was not represented

Hearing Hearing date: 22 February 2017

Judgment Approved by the court for handing down (subject to editorial corrections)

Introduction

[1]Did an inspector determining appeals against an enforcement notice under section 174(2) of the Town and Country Planning Act 1990 fail lawfully to consider “alternatives” to the development against which the enforcement action had been taken? That is the central question in this appeal. The principles of law relevant to it are all well established and familiar.

[2]With permission granted by Lewison L.J. on 18 November 2015, the appellants, Mr and Mrs Arnold, appeal against the order of Dove J., dated 10 April 2015, dismissing their appeal under section 289 of the 1990 Act against the decision of an inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, in a decision letter dated 6 September 2013, to dismiss their appeals under section 174(2) against an enforcement notice issued by the second respondent, Guildford Borough Council, on 2 November 2012.

[3]The enforcement notice alleged a breach of planning control at Blackheath Cottage in the village of Blackheath, near Guildford. Blackheath Cottage has been Mr and Mrs Arnold’s home since 2006. Blackheath is in the Green Belt, and in the Surrey Hills Area of Outstanding Natural Beauty. The development enforced against was the erection of a dwelling-house without planning permission. The enforcement notice required that the building be demolished, and the land reinstated to specified levels. Mr and Mrs Arnold appealed against the notice on the grounds in section 174(2)(a), (b), (c), (f) and (g). The inspector held an inquiry into the appeals over four days in July and August 2013. The appeals succeeded only on ground (g). In his decision letter the inspector upheld the enforcement notice, which he varied to allow a longer period – nine months instead of six – for compliance with its requirements. The appeal against his decision was pursued on four grounds, all of which Dove J. found unmeritorious.

The issues in this appeal

[4]In the appeal to this court there were originally four grounds. Lewison L.J. granted permission only on one, which raises two issues for us to decide. First, did the inspector misdirect himself as to his power to grant planning permission for an “alternative” scheme? And secondly, did he lawfully consider the relevant “alternatives”?

The statutory provisions

[5]Section 172(1) of the 1990 Act gives a local planning authority the power to issue an enforcement notice where it appears to it that there has been a breach of planning control and that it is expedient to issue the notice.Under section 173(3) the steps required by the enforcement notice are to be directed to achieving “wholly or partly” any of the purposes referred to in subsection (4), which are “(a) remedying the breach” of planning control and “(b) remedying any injury to amenity which has been caused by the breach”. Where the enforcement notice requires less than a full remedy of the alleged breach of planning control, section 173(11) provides for deemed planning permission for what is left after the notice has been complied with (see paragraph 31 of the judgment of Carnwath L.J., as he then was, in Tapecrown Ltd. v First Secretary of State

[2006] EWCA Civ 1744

, with which Wilson and Hughes L.JJ. agreed). Section 174(2) provides that an appeal may be brought against an enforcement notice on any of eight specified grounds. The relevant grounds here are these:

“(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted … ; (b) that those matters have not occurred; (c) that those matters (if they occurred) do not constitute a breach of planning control; … (f) that the steps required by the notice to be taken … exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.” (b) that those matters have not occurred; (c) that those matters (if they occurred) do not constitute a breach of planning control; … (f) that the steps required by the notice to be taken … exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.” 6. Section 177(1) provides that on the determination of an appeal under section 174 the Secretary of State may – “(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates; … .”

Section 177(5) provides that, where an appeal is brought under section 174(2)(a), “the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control”. Mr and Mrs Arnold’s development

[6]Blackheath Cottage was an Arts and Crafts building. It was not a listed building, but was described in representations submitted to the inquiry by the Arts and Crafts Movement in Surrey as an example of “Surrey vernacular design in keeping with the Townsend design heritage in the village and the materials used” (paragraph 65 of the inspector’s decision letter). On 24 February 2011 and 6 June 2011 the council issued certificates of lawful development – the first for single-storey rear extension to the building, the second for a two-storey front extension. Mr and Mrs Arnold began extensive works to the building – believing, it seems, that those works had the benefit of planning permission granted by the Town and Country Planning (General Permitted Development) Order 1995. They now accept, as I understand it, that the works did not correspond to the development for which the certificates had been issued.

The enforcement notice

[7]As corrected by the inspector, the enforcement notice alleged the breach of planning control in these terms:

“Without planning permission operational development comprising of the erection of a building to be used as a dwelling … as shown hatched in black on the attached plan.”

The reasons given for issuing the notice stated that the development was “inappropriate development within the Green Belt” and “therefore harmful, by definition”; that there were “no very special circumstances to justify” it; that, “by virtue of the scale and bulk of the replacement dwelling”, it had an “adverse impact on the openness of the Green Belt”; that “[given] the inappropriate nature of the development, this impact would be harmful to the most important characteristic of the Green Belt”; that, “by virtue of its scale, bulk and design”, it “introduces a form of development out of keeping with the rural character of the surrounding area”; and that “the introduction of large areas of flat roof, incorporated within the building, represent poor design forms which jar with the surrounding context”. These contentions of planning harm were supported by reference to relevant local and national policy, respectively in the Guildford Borough Local Plan and the National Planning Policy Framework (“NPPF”). The requirements of the notice included these steps:

“1. Demolish the building in the position shown hatched in black on the attached plan. 2. Reinstate the levels of the land in accordance with the drawing titled existing block plan, submitted with the application for a Certificate of Lawful Development, reference 11/P/00633 and numbered 1007-P011 Scheme A.”

The inspector’s decision letter

[8]In the course of his discussion of the ground (b) appeals the inspector said this (in paragraph 16 of his decision letter):

“16. Stepping back from the finer detail the question to ask as a matter of fact and degree is what took place from December 2011 onwards. Was it simply some staged extensions to an existing dwelling that were arguably not development or permitted development or alternatively in essence the construction of a new dwelling with the integration of a few remaining walls? I consider that the only logical conclusion to draw given the scale and amount of demolition that took place is that what has been built is a new dwelling and not one that has been repaired and extended by alteration and enlargement. Reaching any other conclusion based on the facts would be contrary and send out a message that it is possible to build a new dwelling of a fundamentally different design by employing an argument of staged removal and replacement under [permitted development] rights.”

[9]The inspector dealt with the appeal on ground (a) in paragraphs 44 to 88. In paragraphs 44 and 45 he said:

“44. Before considering the main issues it is worth focusing on what the proposal is that flows from the deemed planning application and ground (a). [Section] 174(a) concerns breaches of planning control which may be constituted by the matters stated in the notice for which planning permission ought to be granted. So essentially, unless the breach of planning control is wrong (which I do not consider it is), the deemed application in this case is for the dwelling as built on the date the notice was issued. I accept that by virtue of [section] 177(1)(a) it is possible to grant permission for the whole or any part of the development constituting the breach of planning control. However what is not possible is to grant planning permission for some alternative form of development that differs from the alleged breach. The authority for this is [Richmond-upon-Thames London Borough Council v Secretary of State for the Environment (1972) 224 E.G. 1555]. Planning permission may only be granted in respect of the matters stated in the notice as constituting a breach of planning control and there is no power to go beyond the notice. With this proviso in mind it is not a question of considering alternative proposals which fall outside the scope of the notice if they materially differ from what is alleged and has been built. I appreciate that I did request alternative schemes which the appellants might pursue instead but they need to be viewed in the context of this legal principle. 45. There is also the matter of whether it would be possible to grant a split decision (allowing the deemed application in part, but refusing the other part) having regard to the practicalities of whether the parts are functionally and physically severable. This is a necessary prerequisite if the requirements of the notice, which would bite on the elements that are refused permission, are to be understood and achievable. If this were not the case then such an approach would be inappropriate as it would leave the parties guessing as to how the building was to be modified to comply with the terms of the notice. The option in such circumstances would be to make a planning application for a modified form of building. Should permission be granted, having regard to the powers conveyed by [section] 180 of the [1990] Act, it would result in any notice ceasing to have effect in so far as it was inconsistent with that permission.”

The inspector referred (in paragraph 46) to the fact that four applications for planning permission “for alternative forms of development, with varying degrees of modification” had been submitted to the council, but that no decisions had yet been made upon them.

[10]There were, in the inspector’s view, four main issues in the ground (a) appeal: first, “[whether] the development is inappropriate development in the Green Belt … or would cause any other harm to the [Green Belt] in terms of its openness or visual amenity”; second, “[the] inherent design of the building constructed and whether it satisfies the tests of relevance from local and national policy”; third, “[the] impact on the natural beauty of the [Area of Outstanding Natural Beauty] …”; and fourth, “[should] harm be adduced in respect of the first, second or third issues whether there are other considerations, whether taken individually or cumulatively, that outweigh that harm amounting to very special circumstances” (paragraph 47).

[11]On the first of those four issues, the Green Belt issue, in an analysis not criticized in this appeal, the inspector accepted the evidence given on behalf of Mr and Mrs Arnold that the increase in floor space from that of the original building was “just over 70%” (paragraph 53), and that the increase in “volume” was almost 100% (paragraphs 54 and 57). The development was therefore, he said, “at odds with the presumption against materially larger replacement dwellings set down in Policy H6 of [the local plan] and the 4th bullet point of paragraph 89 of the [NPPF]”. It was thus “inappropriate development in the [Green Belt] which by definition is harmful and should not be approved except in very special circumstances” (paragraph 56). He concluded (in paragraph 62):

“62. Bringing these [points] together, my conclusion on the first issue is that the replacement dwelling, although having no harmful visual impact, … is materially larger than the one it replaced and [is] thus inappropriate development in the [Green Belt]. It has also caused detriment to the openness of the [Green Belt]. For these reasons there is conflict with Policies RE2 and H6 of the [local plan] and the national policy guidance on development in the [Green Belt] set out in the [NPPF]. Paragraph 88 of the latter makes it clear that substantial weight should be afforded to any harm to the [Green Belt].”

On the second issue, the design issue, the inspector’s conclusion – again uncontentious in this appeal – was this (in paragraph 73):

“73. Given the above analysis I consider that the failings in the design of the dwelling go beyond matters of detail and include some fundamental flaws. I consider it is probable that the building that has arisen results from a contrived approach which has been more concerned with the internal arrangement, range of domestic facilities provided and outlook from within than the external appearance of the building. I find that the finished form has a jarring appearance, especially on the eastern side and that this together with the expanse of glazing, odd truncated roofs and slate finish is out-of-keeping with the immediate context and the character of the area. This runs counter to the thrust of the advice from the [NPPF] set out above, the 2nd and 4th criteria of Policy H6 and the terms of Policy G5 of the [local plan].”

As for the third issue, concerning the Area of Outstanding Natural Beauty, the inspector did “not consider that important views have been prejudiced” by the development. He found that “the landscape and scenic beauty of the [Area of Outstanding Natural Beauty had] not been materially compromised” (paragraph 75). In his conclusions on the fourth issue, under the heading “Other considerations”, the inspector observed that although he had “some sympathy with the predicament [Mr and Mrs Arnold] find themselves in[,] … it is primarily of their own making”. As he went on to say, they “could have heeded the advice of the Council and at the very least either submitted another [certificate of lawful development] application or a planning application for the scheme they wished to build”, but they “did neither and continued to build relying on their own interpretation and that of their advisers that they were right in law and the Council were wrong” (paragraph 80).

[12]In his final conclusions on the ground (a) appeal the inspector said (in paragraphs 85 to 88):

“85. I have found that the development that has taken place is inappropriate development in the [Green Belt] and has caused harm to its openness, contrary to the relevant local and national policies that apply. This harm has to be afforded substantial weight. Set against this combined harm I consider that the other considerations relied upon either carry no or little weight. Consequently, I conclude that these other considerations, whether taken individually or cumulatively do not clearly outweigh the harm identified and that there are no very special circumstances which justify the granting of planning permission. I have given consideration to whether conditions could be imposed to render the development acceptable but given the scale of the development and the fundamental flaws in its design I do not consider that this is possible. 86. I have had regard to the 3 modified forms of development that have been supplied on the appellants’ behalf by Mr Piper. These show various levels of intervention and reduction in the extent of the front and rear extensions and the removal of the garage with the second and third options. Whilst these options would reduce the floor area and volume of the dwelling they are materially different forms of development to what constitutes the deemed application before me and having regard [to section] 174(2)(a) of the [1990] Act and [Richmond-upon-Thames London Borough Council] I consider that it is, at the very least, questionable in law whether I am in a position to substitute these schemes for consideration under ground (a). 87. Even if I were there is also the question of functional and physical severability and whether it is even possible to grant permission for some parts of the dwelling that might be acceptable, subject to conditions. Given the integrated nature of the development I do not consider that this is possible. This is not a case where there is [a] clear divide between parts which are acceptable and parts which are not. I therefore consider that issuing a split decision is not a realistic proposition in this case. The appellants are at liberty to submit planning applications and the 2nd option (2.2) would appear to accord to Scheme C which is already the subject of a planning application under consideration by the Council. By virtue of the powers conveyed by [section] 180 of the [1990] Act, should permission be granted for any of these schemes, any extant enforcement notice will cease to have effect in so far as it is inconsistent with that permission. 88. I therefore conclude that the ground (a) appeal should not succeed and deemed planning permission for the development as constructed or any modified form of dwelling as described and detailed should not be granted.”

[13]The inspector then turned to the appeals on ground (f). The council had, he said, “made it clear in evidence and submissions that the purpose of issuing the notice, having regard to [section] 173(4) of the [1990] Act is to remedy the breach of planning control”, and had contended, therefore, that “the lesser schemes would not achieve this purpose and there [are] no lesser requirements that could be substituted for those set out in the notice”. It had relied on the decision of the Court of Appeal in Secretary of State for the Environment, Transport and the Regions and Oxfordshire County Council v Wyatt Brothers (Oxford) Ltd. [2002] P.L.C.R. 18 and the first instance decision in R. (on the application of Mata) v Secretary of State for Communities and Local Government

[2012] EWHC 3473 (Admin)

. The inspector also referred to the Court of Appeal’s decision in Tapecrown – in particular, paragraph 46 of Carnwath L.J.’s judgment. That decision, he said, “makes the point that the enforcement regime is intended to be remedial and not punitive and that lesser steps, including possible legal ‘fallback’ solutions should be considered instead”. So, “[if] there is an obvious alternative which would overcome the planning difficulties (which [he took to mean] the ‘harm’), at less cost and disruption to total removal, the decision-maker … should feel free to consider it” (paragraph 89 of the decision letter). Mr and Mrs Arnold had also relied on the decision in Tapecrown as well as the first instance decision in Ahmed v Secretary of State for Communities and Local Government

[2013] EWHC 2084 (Admin)

(paragraph 90 of the decision letter). The inspector saw “a certain degree of tension” in the case law (paragraph 91). He confirmed his earlier conclusion on the ground (a) appeal that it was not appropriate to issue a “split decision” (paragraph 92). He also concluded that “the purpose for issuing the notice was to remedy the breach of planning control” and that, “[having] regard to Wyatt [and] Mata there can be no success on ground (f) in terms of substituting lesser steps” (paragraph 93).

[14]But despite that conclusion the inspector went on (in paragraphs 94 and 95) to tackle the ground (f) appeals on the assumption that he was wrong. He said:

“94. However even if I am wrong in this finding, and the authorities of Tapecrown and Ahmed are found to indicate otherwise, then I do not consider that this assists the appellants. Even if it were held that where the purpose of the notice was to remedy the breach of planning control, lesser steps which were less costly or disruptive should be considered, these steps still need to amount to a realistic and obvious alternative which is acceptable. From what is before me by way of alternatives suggested I am not in a position to conclude that they are realistically achievable or obvious solutions which would overcome the harm that has been identified. So following that thread from Tapecrown this does [not] assist the [appellants]. I would add that there is no obvious lawful ‘fallback’ to resort to as can be the situation in enforcement cases. An example might be where a fence in excess of 2m on a garden boundary has been erected; the legitimate fallback, assuming PD rights have not been removed, would be to reduce the height to 2m as an alternative to complete removal. No such fallback scenario exists in this case. 95. Taking these points together I do not consider that it would be acceptable or appropriate to substitute lesser steps or requirements to those set out in the notice. It is not my role to try and devise alternative steps from the schemes before me not least because it is [a] well accepted and understood principle that an enforcement notice needs to be clear on its face from the four corners of the document so that all (appellants, Council, 3rd parties) are certain as to what is necessary to achieve compliance. I do not consider, even if alternatives were permissible, they could be described with the necessary level of precision to achieve this.

(f) ”

The judge’s analysis

[15]The judge observed (in paragraph 80 of his judgment) that it “… was not disputed … that the true test for the alternatives was whether, in accordance with section 177(1)(a), the alternatives comprised “part of” the matters alleged in the notice as the breach of planning control”. He went on to say (in paragraph 81):

“81. In my view, it is important to read the conclusions of the decision letter at paragraphs 86 and 87 along with those which I have set out above which were reached at paragraphs 94 and 95. It is, in my view, unfortunate that the Inspector used the language of “materially different”

. I have no doubt that that is not, in truth, the test.” In paragraph 82 he said this:

“82. The question was whether or not the alternatives were “part of” the breach of control for which permission could be granted, it being clear, of course, that the Inspector had formed the view that the whole of the development could not be granted planning permission.” 17. He added that in his view there was “some justification” in the Secretary of State’s contention that two of the options, the first and third, involved a “redesign of the internal arrangements, footprints and elevations at ground floor”

. In the light of the decision of Ouseley J. at first instance in Ioannou v Secretary of State for Communities and Local Government [2014] J.P.L. 608, this would have “taken the alternative beyond being “part of” the dwelling constructed and enforced against”. He said that “[only] the second option in realitycould have been properly understood as “part of” the development by simply removing, as it did, the garage and part of the south extension”. But then he said this (in paragraph 83):

“83. Be all that as it may, that was not what the Inspector’s decision turned upon. In paragraph 87 he went on to … provide his conclusions on the alternatives which had been promoted. It is important to note that in the first sentence of that paragraph he poses two questions, not simply the question of physical and functional severability, but also whether it would be possible to grant permission for some parts of the dwelling which might be acceptable as opposed to parts which were not. He clearly concludes that this was not a case where there were parts of the development which were acceptable and parts which were not. This is a conclusion which has to be read alongside his conclusion in paragraph 94 that the alternatives would not overcome the harm which he had identified in the course of his analysis of the ground (a) appeal. That was not just harm to the Green Belt, albeit that that was perhaps the most significant element of his planning appraisal, but also harm which arose from the fundamental flaws in the design, which, it was accepted on behalf of [Mr and Mrs Arnold], the alternatives were incapable of curing. Reading the decision letter as a whole against the backdrop of the planning appraisal of the dwelling as built and the alternatives which were promoted, I am unable to accept that the Inspector simply failed to consider those alternatives.” and (in paragraph 84): “84. Whilst [the inspector] entertained doubts that it was legally correct for him to consider them, he did indeed provide conclusions in relation to them. In paragraph 94 he posed himself the correct question in relation to ground (f), namely whether there were obvious alternatives and concluded that they were not. Given his conclusions on the merits and reading the decision as a whole, I do not think that it was necessary for him to provide a detailed analysis of the merits in respect of each alternative, considering for instance the extent to which they might or might not represent a materially larger replacement in terms of Green Belt policy. His conclusions were that they were not obvious solutions and they did not overcome the planning harms which he had identified. Those were conclusions which are entirely comprehensible, taken from the decision read as a whole. In those circumstances, I am unable to accede to the submissions made by [Mr and Mrs Arnold] under ground 3.”

Did the inspector misdirect himself as to his power to grant planning permission for an “alternative” scheme?

[16]For Mr and Mrs Arnold, Mr Richard Turney submitted that the inspector misdirected himself as to the correct test for considering alternative forms of development in the ground (a) appeal. He had, said Mr Turney, failed to ask himself whether the alternative schemes put forward were in fact “part of” the matters that were the subjectof the enforcement notice. Instead, as one can see in paragraph 44 of his decision letter, he applied a different test – the test of whether the alternatives were “materially different” from the development constituting the alleged breach of planning control. This was an error of law, which the judge should have recognized, but did not (see, for example, the judgment of H.H.J. Rich Q.C., sitting as a deputy judge of the High Court, in Exmouth Marina Ltd. v First Secretary of State [2006] J.P.L. 204, at paragraph 36). By making it possible under section 174(2)(a) and section 177(1)(a) for planning permission to be granted for “part of” the development alleged to be a breach of planning control, the statutory scheme clearly contemplates the granting of permission for development which is indeed materially different from that which has been built and enforced against.

[17]Mr Turney argued that the flaw in the inspector’s approach went deeper than the judge had discerned. The judge seems to have accepted that the inspector applied “the wrong test”. But he should not have accepted – because the inspector had gone on to consider whether it was open to him to “grant a split decision”, as he put it in paragraph 45 of the decision letter – that the error was insignificant. The inspector’s findings and conclusions in paragraph 87 did not render immaterial his mistake as to the correct test in law. He failed to recognize that the only “split decision” he had to consider was whether any of the alternative schemes in the drawings before him was acceptable, so that he could properly grant planning permission for it and otherwise uphold the enforcement notice. Section 174(2)(a) and section 177(1)(a) obliged him to undertake that task, but he did not. The upshot, Mr Turney submitted, was that he misdirected himself in finding that he could not, as a matter of law, grant planning permission for any of the alternative schemes. He was also wrong to suppose that Mr and Mrs Arnold were free to submit applications for planning permission to the council. Section 70C of the 1990 Act enables a local planning authority to “decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control”.

[18]I cannot accept those submissions.

[19]One must start, I think, with what was said by Carnwath L.J. in Tapecrown. He referred (in paragraph 32 of his judgment) to the scope of an appeal under section 174(2)(a) and the need for that provision to be read together with section 177, which, he said, “makes clear that, on an enforcement appeal, planning permission may be granted in respect of the matters alleged in the notice “in relation to the whole or any part of those matters” (s.177(1)(a)) …”. He went on to say this (in paragraph 33):

“33. In short, the inspector has wide powers to decide whether there is any solution, short of a complete remedy of the breach, which is acceptable in planning terms and amenity terms. If there is, he should be prepared to modify the requirements of the notice, and grant permission subject to conditions (or to accept a s.106 agreement, if offered). I would emphasise, however, that his primary task is to consider the proposals that have been put before him. Although he is free to suggest alternatives, it is not his duty to search around for solutions. I will return to the latter point in connection with the grounds of appeal.” and later (in paragraph 46): “46. … [The] inspector should bear in mind that the enforcement procedure is intended to be remedial rather than punitive. If on his consideration of the submissions and in the light of the site view, it appears to him that there is an obvious alternative which would overcome the planning difficulties, at less cost and disruption than total removal, he should feel free to consider it. … .”

One must remember, of course, as Sullivan L.J. said in Secretary of State for Communities and Local Government v Ioannou

[2014] EWCA Civ 1432

(in paragraph 37 of his judgment):

“37. In Tapecrown ... Carnwath [L.J.] was not establishing a free-standing “obvious alternative” test as a replacement for … the express statutory limitations imposed by subsections 177(1) and 173(11) upon the nature and extent of the planning permissions that may be, or be treated as having been, granted in response to appeals under section 174. The “obvious alternatives” which he had in mind were those “obvious alternatives” which (it was agreed in that case) would fall within the scope of a ground (f) appeal.”

[20]It is necessary, as always, to read the inspector’s relevant conclusions fully, in their proper context, and bearing in mind that the decision letter was written principally for the parties to the appeals, who were of course familiar with the evidence and submissions presented on either side at the inquiry. One should not isolate particular passages in the inspector’s conclusions from others which are also relevant to the specific point being considered in the passage in question. The inspector’s conclusions on the ground (a) and ground (f) appeals are not wholly discrete. They relate to each other, and, to an extent, depend upon each other. They must be considered together.

[21]When that is done, I do not think one can find any error of law in the inspector’s approach.

[22]As Mr Ryan Kohli submitted on behalf of the Secretary of State, the inspector, when dealing with the ground (a) appeal, correctly identified the question he had to decide. He referred in paragraph 44 of his decision letter to the provisions of sections 174(2)(a) and 177(1)(a). He recognized the parameters of his power to grant planning permission under ground (a). He directed himself, correctly, that section 174(2)(a) required him to focus on “breaches of planning control which may be constituted by the matters stated in the notice”, and therefore that “unless the breach of planning control is wrong”, which in his view it was not, “the deemed application in this case is for the dwelling as built[,] on the date the notice was issued”. He also explicitly directed himself that, under section 177(1)(a), “it is possible to grant permission for the whole or any part of the development constituting the breach of planning control”. He reminded himself, however, that “what is not possible is to grant planning permission for some alternative form of development that differs from the alleged breach”. He was thus acknowledging that his powers here were circumscribed by the allegation of the breach of planning control in the enforcement notice. Nothing that was said by this court in Tapecrown detracts from that basic principle.

[23]It was with that principle in mind that the inspector referred in paragraph 44 to the decision of the Divisional Court in Richmond-upon-Thames London Borough Council. Planning permission, he said, may only be granted “in respect of the matters stated in the notice as constituting a breach of planning control”. And there was, he reminded himself, “no power to go beyond the notice” (my emphasis). Conscious of that constraint, he directed himself that the exercise he was engaged upon was “not a question of considering alternative proposals which fall outside the scope of the notice if they materially differ from what is alleged and has been built” (my emphasis again). The “alternative schemes” produced on behalf of Mr and Mrs Arnold had to be “viewed”, he said, “in the context of this legal principle”.

[24]Mr Turney fixed upon the words “if they materially differ from what is alleged and has been built”, stressing in particular the phrase “materially differ”. But that phrase, read properly in its context, connotes only a material difference in the sense of alternative proposals which “fall outside the scope of the notice”, not any alternative proposal falling within the scope of the notice as a part of the matters stated in it as constituting a breach of planning control. The inspector was not saying anything more than that in paragraph 44 of his decision letter. Any doubt about this – and I can see none – would be dispelled by the fact that he supported this particular conclusion with a reference to the decision of the Divisional Court in Richmond-upon-Thames London Borough Council. In that case, as Mr Kohli pointed out, the court was concerned not with the question of whether, on appeal, planning permission had been granted for “whole or part” of the matters stated in the enforcement notices as constituting a breach of planning control, but with the separate question of whether permission had been granted for a development outside the ambit of that alleged breach. The local planning authority had served enforcement notices requiring the owners of the land to cease using it for parking motor coaches. On appeal against the notice, the Secretary of State granted temporary planning permission, for a period of seven years, for the general parking of vehicles on the site, without limiting the permission to the parking of motor coaches as specified in the enforcement notices. The courtallowed the authority’s appeal, acknowledging that “[the] most the Secretary of State could do in the circumstances was to grant planning permission for motor coaches to park on the site”.

[25]Properly understood, paragraph 44 of the inspector’s decision letter does not betray the kind of error that was made in Exmouth Marina Ltd.. The inspector in that case had said in his decision letter that “… the basis of the appellants’ case must logically be that the conditions would achieve substantially or materially different structures” from those that were the subject of the local planning authority’s enforcement notice (see paragraph 32 of H.H.J. Rich Q.C.’s judgment). The judge concluded (in paragraph 36) that “the Inspector’s test of whether the smaller development to be permitted is substantially or materially different from that which is the subject matter of the enforcement notice, in order to determine the power to grant permission on appeal under para.(a) is wrong”. The question under section 177(1) was “whether it is “the whole or any part” of the matters stated as constituting a breach”. The judge also rejected the proposition that the principle in Bernard Wheatcroft Ltd. v Secretary of State for the Environment [1982] 43 P. & C.R. 233 was of “any relevance to the exercise of the specific power to grant planning permission for a part only of the unauthorised development”. In his view it was likely that the exercise of that power “will often be most appropriate when it does result in a development which is in substance different from the subject matter of the enforcement notice, and therefore any deemed application for planning permission arising out of an appeal under para.(a)” (paragraph 37).

[26]The inspector in this case did not misdirect himself in the way thatthe inspector in Exmouth Marina Ltd. did. Neither in paragraph 44 nor elsewhere in his decision letter did he make the mistake of discounting any alternative proposal before him on the basis that, whilst it might properly be regarded as representing “part of” the matters referred to in the enforcement notice as constituting the alleged breach of planning control, it ought to be put to one side if it was ““substantially” or “materially” different from … the subject matter of the enforcement notice …”. Nor did he invoke the principle in Bernard WheatcroftLtd..

[27]On the contrary, as is clear from paragraph 45 of the decision letter, he did exactly what he had to do in considering whether it was possible here to exercise his statutory power to grant planning permission for a part of the matters constituting the alleged breach of planning control in the enforcement notice. He did so without applying a false test of material difference from those matters. In paragraph 45 he posed for himself the question “whether it would be possible to grant a split decision (allowing the deemed application in part, but refusing the other part) …”. This question, as he acknowledged, was to be approached “having regard to the practicalities of whether the parts are functionally and physically severable”. This, as he said, was “a necessary prerequisite if the requirements of the notice, which would bite on the elements that are refused permission, are to be understood and achievable”. I see no error of law in this part of his conclusions. Once again, his self-direction was, in my view, impeccable.

[28]The inspector’s directions to himself in paragraphs 44 and 45 also informed the conclusions he reached on the ground (a) appeal in paragraphs 85 to 88. And those conclusions too are, I think, unassailable.

[29]There can be no complaint about anything the inspector said in paragraph 85. His conclusions there reflect his exercise of planning judgment: harm to the Green Belt by reason of inappropriateness, harm to its openness, “no or little weight” to be attached to the other considerations relied upon by Mr and Mrs Arnold, no very special circumstances to justify the granting of planning permission, and also “fundamental flaws” in the design.

[30]The conclusions that follow in paragraph 86 reflect the inspector’s self-direction in paragraph 44. He now found, as a matter of fact and degree, that the three “modified forms of development” provided on behalf of Mr and Mrs Arnold by their architect, Mr Piper, were all “materially different forms of development to what constitutes the deemed application …”. Such a finding, as a matter of fact and degree, is beyond challenge in proceedings such as these, unless, for example, it can be shown that an inspector has plainly ignored or misunderstood some obvious fact or misread the drawings in which an alternative scheme or schemes are presented to him by the appellant. But in this case no cogent submission has been made to that effect. In the circumstances, it is not the court’s task to unpick the inspector’s findings of fact.In my view he was fully entitled to make the findings he did, and to conclude as he did in the light of those findings. In doing so, he expressly had regard to the provisions of section 174(2)(a) and the decision of the Divisional Court in Richmond-upon-Thames London Borough Council – just as he did in paragraph 44. He was plainly well aware of the nature and extent of the relevant statutory powers. His conclusion that it was, “at the very least, questionable in law whether [he was] in a position to substitute these schemes for consideration under ground (a)” clearly went to the question of whether any of the alternative schemes could properly be regarded as falling within the scope of the matters stated in the enforcement notice as constituting a breach of planning control. It discloses no misdirection as to the relevant law.

[31]That, however, was not the decisive conclusion here. The decisive conclusion followed in paragraph 87. It did not depend on what the inspector had said in paragraph 86. This is plain from the words at the beginning of paragraph 87: “Even if I were …”. Those words, in their context, can only mean that the inspector was moving on to a separate question, and was now assuming that he was in a position lawfully to consider the alternative schemes before him on the basis that they did not, as he had put it in paragraph 44, “fall outside the scope of the notice …”. That, I think, is quite clear. And in my view there can be no sensible dispute that the inspectorunderstood his power to grant planning permission for part or parts of the building as constructed and enforced against – rather than for the development as a whole. His conclusions in paragraph 87 reflect his self-direction in paragraph 45. The two questions he now addressed were, first – as foreshadowed in paragraph 45 – whether part or parts of the building were functionally and physically severable; and second, if so, whether it was possible to identify part or parts of the building that were “acceptable”.

[32]The inspector’s answer to both questions was, in effect, an unequivocal “No”.

[33]As to the first question, he found that it was not possible to sever, or split, the building into separate parts. This was because the development was, as he put it, “integrated”. That was his critical finding. Once again, it was quintessentially a matter of fact and degree for him as decision-maker. And once again, in my view, he was clearly entitled to make the finding he did; there is no basis for the court to interfere with it. As he appreciated, the question was not simply whether the alternative development in any of the schemes put forward would, as he had put it in paragraph 86, “reduce the floor area and volume of the dwelling” – because it would occupy only part of the same footprint as the development against which the council had enforced, and not extend beyond that footprint. It was, as he recognized, whether in this case a “clear divide” could be identified between different parts of the development, so that,under the statutory powers available to him, planning permission could properly be granted for one part and not for the other. He found that this could not be done.

[34]Logically, therefore, the second question – the question of acceptability – was academic. But the inspector answered it nevertheless. This was not, he concluded, a case in which it was possible to separate parts of the development that were “acceptable” from parts that were not. The question of acceptability was a matter of planning judgment for him. And, once again, his exercise of planning judgment is not vulnerable to criticism before the court. It was not unreasonable, nor was it founded either on immaterial considerations or on a less than complete assessment of the considerations that were material.

[35]There is nothing in Mr Turney’s submission that the inspector’s approach was at odds with the provision in section 70C. The inspector’s observation, in paragraph 87, that Mr and Mrs Arnold were “at liberty to submit planning applications and the 2nd option … would appear to accord with Scheme C which is already the subject of a planning application under consideration by the Council …”, is not inconsistent with a local planning authority’s power under section 70C to decline to determine a retrospective application for planning permission for development against which enforcement action has been taken.

[36]In paragraph 82 of his judgment Dove J. said that “[only] the second option in reality could have been properly understood as “part of” the development by simply removing, as it did, the garage and part of the south extension”. The inspector did not differentiate the second alternative scheme from the other two in that way. But in any event the judge’s analysis in paragraph 83, prefaced by the words “Be all that as it may”, is in my view clearly correct. It does not depend on what he said about the “second option” in paragraph 82. As he recognized, the inspector’s decision on the ground (a) appeal turned on the conclusions in paragraph 87 of the decision letter, and in particular on the conclusion that “this was not a case where there were parts of the development which were acceptable and parts which were not”. And as he said, this conclusion aligns with what the inspector went on to say in paragraph 94 of the decision letter – that the suggested alternatives could not be seen as “realistically achievable or obvious solutions which would overcome the harm that has been identified”.

[37]I therefore conclude that there is nothing amiss in the inspector’s approach to the ground (a) appeal.

[38]Nor, in my view, can he be criticized for his approach to the appeals on ground (f), which was also, I believe, both accurate and complete. Whether it was strictly necessary for him to go as far as he did in his consideration of the appeals on that ground, it cannot be said that in doing so he fell into error.

[39]There is, and can be, no complaint aboutanything the inspector said in paragraphs 89 to 93 of his decision letter, culminating in his conclusions, at the end of paragraph 93, that in the light of the relevant case law, including Tapecrown, Wyatt, Mata and Ahmed, “the purpose for issuing the notice was to remedy the breach of planning control”, and that “there can be no success on ground (f) in terms of substituting lesser steps”. The path taken by the inspector to those conclusions does not depart from the principles in the relevant authorities, including now the decision of this court in Miarisv Secretary of State for Communities and Local Government

[2016] EWCA Civ 75

[40]The inspector’s conclusions in paragraphs 94 and 95 – assuming now that “lesser steps” could in principle be considered – must be read together with his earlier conclusions on the ground (a) appeal. As Mr Kohli submitted, he was entitled at this stage to express himself relatively briefly, provided of course that his approach was sound in law. In my view his approach was sound in law. On the assumption that he had to consider “lesser steps which were less costly or disruptive”, he directed himself, rightly, that “these steps still need to amount to a realistic and obvious alternative which is acceptable” (paragraph 94 of the decision letter). So he was clearly aliveto those two questions: realism and acceptability. And he answered both. As he went on to say, he was not able either to find that the suggested alternatives were “realistically achievable or obvious solutions” or to conclude that they “would overcome the harm that has been identified”. Thus, as he also concluded, the jurisprudence in Tapecrown was of no help to Mr and Mrs Arnold in their appeals on ground (f). Those findings and conclusions obviously applied to each of the alternatives put forward. And finally here, as the inspector also said, there was no “obvious lawful ‘fallback’ to resort to” (ibid.).

[41]The conclusions in paragraph 95 of the decision letter flow from those in paragraph 94. There is nothing unlawful about them. The inspector concluded, as he was entitled to, that it would be neither “acceptable” nor “appropriate” to “substitute lesser steps or requirements” for those set out in the enforcement notice. He did not make the mistake of attempting to devise alternative steps beyond those suggested on behalf of Mr and Mrs Arnold. That, as he said, was not his role. Even if there had been any “permissible” alternative, it could not, as he put it, have been “described with the necessary level of precision”.

[42]In my view therefore, the judge was right to uphold as lawful both the inspector’s approach to the ground (a) appeal and his approach to the appealson ground (f).

[43]I do not see how Mr Turney’s argument can gain any support from the decision of this court in Ahmed. There the inspector had gone wrong in failing to consider an alternative scheme for which planning permission had been granted on appeal in 2005. The Court of Appeal emphasized that the question of whether an alternative scheme could be regarded as “part of” the development against which the local planning authority had enforced was a matter of planning judgment for the inspector. In that case the inspector had simply failed to exercise his planning judgment, having given no consideration to the possibility of granting planning permission for the 2005 scheme (see paragraphs 26 and 27 of the judgment of Richards L.J., with which Underhill and Floyd L.JJ. agreed). On its facts, therefore, Ahmed is not truly comparable to this case. In this case the inspector manifestly did consider all of the alternative schemes put forward. In doing so, he was fully aware of the statutory powers available to him and acted in accordance with them.

[44]More in point, I think, is the decision of Ouseley J. in Ioannou. That case is in some respects analogous to this on its facts. The local planning authority had served an enforcement notice requiring the cessation of the use of a dwelling house converted without planning permission into five self-contained flats. On his ground (a) appeal, the appellant presented the inspector with a proposal for the conversion of the building into three flats, which, as the authority accepted, would avoid the planning objections to its use as five flats. The inspector did not, however, grant planning permission for the three-flat scheme. Ouseley J. endorsed his approach. It was the matters stated in the enforcement notice as constituting abreach of planning control to which the inspector’s attention was directed under section 177(1)(a), rather than the works in the alternative scheme. He could “only grant permission under ground (a)[,]and on the deemed application, for the alternatives to the extent that that could be achieved by granting permission for the whole or part of the breaches alleged in the notice” (paragraph 32 of the judgment). Ouseley J. went on to say this (in paragraph 33):

“33. The inspector obviously could [not grant] permission for the whole of the breach alleged in the notice and so achieve the three-flat scheme; that would simply leave the five flats in place. His only other power was to grant permission for part of the breach alleged in the notice. But the three-flat scheme could not be arrived at by granting permission for part only of the matters alleged to constitute the breach of planning control in the notice. Only one of the five flats, the one on the first and second floor, could be left untouched, although an entry door would have to be removed. … The four flats on the ground floor could not go into two flats without internal alterations to walls, doors, and facilities. Works were required in order to produce three flats, which were not part of the matters alleged to constitute a breach of planning control in the notice. Granting planning permission for the larger flat without more … would not have remedied what the Inspector found to be the objectionable parts of the breach of planning control, nor would it have produced the scheme which the Inspector was prepared to see achieved.”

For the appellant’s argument on ground (a) and the deemed planning permission to succeed without recourse to the powers governing remedial steps under ground (f), the power in section 177(1)(a) would have to be “read as empowering the grant of permission for a development which is not, and is not part of, the matters alleged to constitute a breach of planning control, and indeed which does not exist”. The wording of section 177(1)(a), was “too specific and clear for such an interpretation” (paragraph 34). As Ouseley J. went on to say, “something other than the grant of permission for all or part of the matters alleged in the enforcement notice to constitute the breach of planning control would be required to achieve the three-flat scheme” (paragraph 37).

[45]Those conclusions were confirmed by this court (see the judgment of Sullivan L.J., at paragraph 11). The Secretary of State’s appeal succeeded on the argument that the inspector was also correct in his conclusion that he did not have the power to consider the three-flat scheme under the appeal on ground (f) (see paragraphs 27 to 40 of Sullivan L.J.’s judgment). But Ouseley J.’s analysis on the ground (a) appeal in that case illustrates very well the practical limits of an inspector’s power to grant permission for development which is part of the matters alleged in an enforcement notice to constitute a breach of planning control. The inspector’s approach in this case seems entirely congruent with it.

[46]I conclude, therefore, that Mr and Mrs Arnold’s appeal cannot succeed on the basis that the inspector misdirected himself as to his power to grant planning permission for an “alternative” scheme. There was no such misdirection.

Did the inspector lawfully consider the relevant “alternatives”?

[47]Mr Turney argued that the inspector’s consideration of the alternative schemes on their planning merits was so deficient as to be unlawful, and in any event lacked the requisite clear and adequate reasons. The main objection to the development against which the council had enforced was that it was “inappropriate development” in the Green Belt, which could not be justified by “very special circumstances”. If the inspector had grappled with that issue, and had concluded that any of the alternative schemes was not for “inappropriate development” in the Green Belt, he would have had to exercise his planning judgment on the balance between any harm the development would cause and any considerations weighing against that harm. He might have found the objections to that alternative scheme outweighed by other considerations, including the personal circumstances of Mr and Mrs Arnold and their children, and their human rights. But he reached no conclusion on the basic question of whether each of the alternatives was or was not “inappropriate development”. To do so, he would have had to consider, under the policy in paragraph 89 of the NPPF, whether or not the scheme in question was for a “replacement” building “materially larger” than the dwelling it had replaced. This was a question he had to deal with, but did not. Had he appreciated that it was within his power to make what he called a “split decision”, and had he considered the planning merits of each of the alternative schemes, he might have been minded to grant planning permission for one of them – perhaps most likely for “the 2nd option” to which he referred in paragraph 87 of the decision letter. The errors he made in his consideration of the alternative schemes, Mr Turney submitted, are enough to vitiate his decision.

[48]I do not think that argument is tenable.

[49]I have already concluded that the inspector’s approach both to the ground (a) appeal and to the appeals on ground (f) was correct as a matter of law. The issue here is whether, in any event, he erred in law by failing to undertake a sufficient assessment of the alternatives before him. I cannot accept that he did.

[50]It seems to me that Mr Turney’s argument here depends on a misreading of the inspector’s relevant findings and conclusions. I agree with the judge’s conclusion, and Mr Kohli’s submission to us, that, on a fair reading of the decision letter, the inspector did not regard any of the suggested alternatives as – to recall Carnwath L.J.’s phrase in pargraph 33 of his judgment in Tapecrown – “acceptable in planning terms and amenity terms”. Any other reading of his relevant conclusions would, I think, be unrealistic.

[51]In paragraph 85 of the decision letter the inspector identified the planning objections to the development against which the council had enforced. They were, on any view, very powerful objections. The inspector concluded that the development was harmful to the Green Belt, because it was “inappropriate development in the [Green Belt] and [had] caused harm to its openness” – which he referred to as “this combined harm”. That harm merited, as he said, “substantial weight”. But he also concluded that the development suffered from “fundamental flaws in its design”. The considerations on the other side of the planning balance, even when “taken … cumulatively”, did “not clearly outweigh the harm …”, and there were, he said, “no very special circumstances which justify the granting of planning permission”. As he put it, those considerations carried “no or little weight”.

[52]When he came to consider the alternative proposals in the context of the ground (a) appeal, in paragraph 87, he was unable to find any “clear divide between parts [of the development] which are acceptable and parts which are not”. As a matter of planning judgment, that conclusion, as I have said, is entirely secure. The inspector was unable to find some realistic “divide” within the development that was the subject of the enforcement notice, which would have enabled him to regard some part or parts of it as “acceptable in planning terms and amenity terms”.

[53]A similar conclusion, in the context of the appeals on ground (f), is to be seen in paragraph 94. The language there is slightly different. There were, said the inspector, no “realistically achievable or obvious solutions which would overcome the harm that has been identified”. And in paragraph 95 he said that he did not consider it would be “acceptable or appropriate to substitute lesser steps or requirements to those set out in the notice”. Once again, he was saying, in effect, that it was impossible to identify some part or parts of the development that could be regarded as acceptable.

[54]I see no force in the submission that the inspector ought to have gone further than he did, treating every alternative separately, considering the individual weight of each objection to that particular alternative proposal, and striking an individual planning balance – harm against benefit, or at least harm against other considerations – for each of them, one by one. The false premise in that submission is that the inspector might have thought this a meaningful exercise, which could have made a difference to his ultimate conclusion. But on a fair reading of the relevant parts of his decision letter, he was clearly not of that view.

[55]Having directed himself properly on the powers available to him in determining the appeals on ground (a) and ground (f) – as in my view he did – the inspector was not obliged to spell out, for each one of the alternative schemes, the same basic conclusions as he expressed in respect of them all. He was well aware of the differences between the alternative schemes, as one can see from his reference to “the 2nd option” in paragraph 87. And if those differences had been significant in his assessment he would have said so, but he did not do that. If, for example, in dealing with the ground (a) appeal, he had considered any of the alternative schemes to represent, in itself, a distinct part of the matters stated in the enforcement notice as constituting a breach of planning control, and that this part of the alleged breach was not “inappropriate development” in the Green Belt and did not therefore have to be justified by “very special circumstances” under national policy in paragraphs 87, 88 and 89 of the NPPF, he would surely have said as much. Or if, in his view, there had been a distinct part of the alleged breach of planning control that was “inappropriate development” but he thought “very special circumstances” had been demonstrated, he would have said that. If he had been satisfied that any of the alternative schemes represented, in itself, a distinct part of the breach of planning control alleged in the notice, and that this part of the alleged breach would be free of the “fundamental flaws” in the design to which had referred, again he would have made that clear. And if he had believed that, for any of those alternative proposals, the planning balance would have fallen in its favour – because the personal circumstances of Mr and Mrs Arnold and their children, and their human rights, together with any other considerations supporting that particular development, were sufficient to outweigh the harm – he would undoubtedly have said so. But he did not. On the ground (f) appeals, if he had believed that “the harm that has been identified” could be overcome, whether entirely or even partially, by a scheme that was “realistically achievable” – as he put it in paragraph 94 – he would have said that. Again, he did not.

[56]I agree with Dove J.’s conclusion in paragraph 84 of his judgment –that, in the circumstances, it was not necessary for the inspector “to provide a detailed analysis of the merits in respect of each alternative, considering for instance the extent to which they might or might not represent a materially larger replacement in terms of Green Belt policy”. As the judge recognized, the inspector concluded that none of those schemes would “overcome the planning harms which he had identified”. When the decision letter is read as whole, the relevant conclusions are, as the judge said, “entirely comprehensible” (ibid.). Those conclusions were clearly intended to relate to each and all of the alternative schemes put forward. And in my view it cannot be said that the inspector failed to address both the achievability of each of those alternative schemes and also its acceptability in planning terms and amenity terms. He did that as fully as he needed to, and with perfectly clear and adequate reasons. He made no error of law.

[57]It follows that on this issue too the appeal must fail.

Conclusion

[58]For the reasons I have given, I would dismiss this appeal.

[59]I agree.