Rapose v London Borough of Wandsworth [2010] EWHC 3126 (Admin)

[2010] EWHC 3126 (Admin)Case No CO/5466/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 December 2010
Before
MR JUSTICE LINDBLOM
Between
Claude RAPOSEClaimantLondon Borough of WandsworthDefendant
Mr Reuben Taylor (instructed by Berwin Leighton Paisner) for ClaimantMr Jonathan Ferris (instructed by ASB Law) for DefendantMr Rembert de Mello for Interested PartyHearing Hearing dates: 17 November 2010
Judgment

Introduction

[1]This is a claim for judicial review of the decision of the Council of the London Borough of Wandsworth Council (“the Council”) made by its Planning Applications Committee on 15 March 2007 to exercise its powers as local planning authority under sections 178 and 179 of the Town and Country Planning Act 1990 (“the 1990 Act”) to allow it to carry out the works required by an enforcement notice which it had issued under section 172 of the 1990 Act in March 2001 in respect of the erection of an unauthorized extension at No. 1 Algarve Road, London SW18, and to take any subsequent legal action to ensure compliance with the notice.[2]No. 1 Algarve Road is an end-of-terrace property, adjoining, on one side, No.3 Algarve Road, and, on the other, vacant land comprised in Nos. 312 to 320 Earlsfield Road, the buildings which once occupied that land having now been demolished. The Claimant, Mr Claude Rapose, has or had a leasehold interest in the premises seeks an order to quash that decision and for a declaration that the 2001 enforcement notice is of no effect in relation to the side and rear extension constructed at No. 1 Algarve Road. His claim is supported by the Interested Party, Mr Cyril Rapose.[3]Permission for the claim to proceed on a limited basis was granted by Davis J. on 12 December 2008.

Factual background

[4]There is a long planning history. For present purposes the salient features of it are as follows.[5]On 22 March 2001 the Council served the enforcement notice. The breach of planning control alleged in the notice was “Without [PP] the erection of a three storey side and rear extension”. The requirement of the notice was stated thus:
“Remove the extension and all materials forming part thereof from the Land and restore the Land to its condition before the breach took place.”
Mr Rapose appealed against the notice. On 8 November 2001 the Inspector dismissed the appeal, imposing a period for compliance of six months. A challenge to the Inspector’s decision failed in January 2002. The enforcement notice therefore came into effect on 8 May 2002. 6. In August 2002 Mr Rapose applied for planning permission for the development of a site comprising Nos.312-320 Earlsfield Road and Nos.1 and 3 Algarve Road. The application sought approval for the redevelopment of that site to provide a three-storey building comprising a restaurant and six residential units. In the application form, to the question “Have the building works … taken place?” in box 3the answer “YES” was given. To the question “Does the proposal involve the removal or demolition of any part of an existing building” in box 8 the answer “NO” was given. The application fee was apparently calculated on the basis that, in part, the proposal included the retention of the extension. When the application went to the Council’s Planning Applications Committee at its meeting on 19 June 2003, the officers described the development for which permission was now being sought in this way:
“Amended proposals for the redevelopment of site to provide a three-storey building measuring 28.5m at its widest point, 21.3m at its longest point and 10.6m at its highest point incorporating the existing two and three-storey buildings at 1 and 3 Algarve Road …”
. The officers went on to make these observations about the proposal: “The site has been an eyesore for many years and the current CPO action should ensure the early redevelopment of that part of the site. As an alternative, the implementation of this redevelopment for mixed commercial/residential would greatly improve the character and appearance of the area would be in keeping with what is predominantly an area characterised by two and three-storey buildings. The principle of a mixed commercial/residential scheme has been established by an earlier permission granted in 1995 and is considered to be acceptable. … … The positioning and scale of the building would respect neighbouring buildings and would not result in any adverse impact on the amenities of neighbouring residential properties. Because the unauthorised extension at 1 Algarve Road is incorporated as part of a comprehensive redevelopment of the site the reasons for the enforcement action to secure its removal are largely overcome. The approval would have an appropriately worded condition to ensure the completion of the whole development. …”.[7]A similar proposition to that in the second of the two paragraphs from which I have just quoted appears in the Council’s “Summary Grounds of Objection” in the present proceedings (dated 13 July 2007), which states, in paragraph 3:
“The grant of permission on 19 June 2003 to permit the unauthorised extension at the rear of 1 Algarve Road … was made on the basis that it was or was to be incorporated as part of a comprehensive redevelopment of the site (including Earlsfield Road), so the reasons for the enforcement action to secure its removal were largely overcome.” and in paragraph 10: “Thereafter [that is, after the challenge to the Inspector’s dismissal of the enforcement notice appeal was dismissed] enforcement was put on hold because the 2003 planning consent (if actioned) would have permitted the extension to remain as part of the comprehensive development of the Earlsfield Road site by the Claimant and his associates pursuant to the 2003 planning consent. That planning consent can no longer be actioned because of the compulsory acquisition of the Earlsfield Rd site by the Council and the extension must now be taken down.” 10. On 27 June 2003 the Council granted planning permission for the proposed development. The permission stated: “The Council, in pursuance of its planning powers, hereby permits the development referred to in the schedule below in accordance with the plans submitted and subject to the conditions set out therein.”
The description of the development was this:
“Redevelopment of site to provide a three storey building comprising a restaurant on part of the ground floor and 6 residential units on the remainder of the ground and upper floors. Kitchen ventilation duct on roof level.”
The drawings to which the permission related were stated to be “Earlsfield/Ground, First, Second & Roof Rev A. Rear/A, Section/A, Base, Front & Flank.” 11. The permission was made subject to 10 conditions. Condition 1 required the development to be begun within 5 years from the date of the permission – that is to say by 26 June 2008. Condition 2 stated:
“Details of the proposed boundary treatment shall be submitted to and approved by the local planning authority.

(s) ”

The reason given for the imposition of that condition was:
“To ensure a satisfactory appearance and to accord with Council policy TBE5.”
Condition 3 stated:
“Notwithstanding any materials specified in the application, details and samples of materials proposed to be used on all external surfaces of the development shall be submitted to and approved by the local planning authority before any works are commenced. The development shall be carried out in accordance with the approved materials.”
The reason given for the imposition of that condition was:
“In order to assess the suitability of the proposed materials, in the interests of the appearance of the locality, in accordance with Council policy TBE5”
. Condition 4 stated:
“Details of noise insulation measures to provide effective resistance to the transmission of airborne and impact sound between the restaurant and residential units at ground and first floor levels shall be submitted to and approved by the local planning authority. The approved measures shall be completed prior to the commencement of the use/occupation of the premises.”
The reason given for the imposition of that condition was:
“To safeguard the amenities of adjoining occupiers, in accordance with Council policy H5.”
Condition 9 stated:
“The development hereby approved shall be implemented on a comprehensive basis and no part of it shall be occupied prior to the completion of all works to the satisfaction of the [LPA].”
The reason given for the imposition of that condition was:
“The development is only considered acceptable if it is carried out on a comprehensive basis.”
Condition 10 stated:
“Details of noise insulation measures to provide effective resistance to the transmission of noise and vibration between the kitchen extract duct and residential units of 312-320 Earlsfield Road hereby approved shall be submitted to and approved in writing by the [LPA]. The approved measures shall be completed prior to the commencement of the use/occupation of the premises.”
The reason given for the imposition of that condition was:
“To safeguard the amenities of future occupiers, in accordance with Policy H5.”
[12]In August 2003, the Council had made a compulsory purchase order (The London Borough of Wandsworth 312-320 Earlsfield Road, London SW18 Compulsory Purchase Order 2003) in respect of land adjoining No. 1 Algarve Road at Nos. 312-314 Earlsfield Road and adjacent buildings at Nos. 316-320 Earlsfield Road. The order was made under the relevant powers relating to the compulsory acquisition of land suitable for residential accommodation in the Housing Act 1985. The Council’s object in seeking the compulsory acquisition of the order land was to enable it to be disposed of to a registered social landlord, Threshold Housing and Support Ltd., which in September 2002 had obtained planning permission for a scheme of six affordable homes for people in housing need and key workers in the borough and had secured funding from the Housing Corporation for the purchase and redevelopment of the site. Mr Rapose and other members of his family objected to the order. After an inquiry an Inspector recommended that the order be confirmed. This recommendation was accepted by the Secretary of State, who confirmed the order on 10 December 2004. Mr Rapose and others challenged that decision, unsuccessfully, Collins J. rejecting the application on 18 October 2005. The order land was vested in the Council in 2006.[11]Subsequent efforts by Mr Rapose to attack the compulsory purchase order, including an application to appeal to the Court of Appeal and an objection to the registration of the freehold title to the order land by the Land Registry, came to nothing.[12]At its meeting on 15 March 2007 the Council’s Planning Applications Committee considered the taking of action in respect of the development to which the enforcement notice related, under sections 178 and 179 of the 1990 Act. The report described the relevant history, refers to the June 2003 planning permission, stating:
“June 2003 p.p. granted for the redevelopment of 312-320 Earlsfield Road and 1 and 3 Algarve Road to provide a three-storey building comprising a restaurant on part of the ground floor and six residential units on the remainder of the ground and upper floors. The former leaseholder has claimed that this approval legitimises the unauthorised extension at 1 Algarve Road because the walls of the extension are shown on the approved drawings, being shown as incorporated within a larger building. This development did not commence and the Council has refuted the former leaseholder’s claim that the extension has been approved.”
The report went on to say:
“… The unauthorised extension should have been removed by May 2002 but because the Council was involved in the CPO action on the adjoining site … it was decided by the Council that action to secure compliance with the enforcement notice would not be appropriate until the CPO had been determined. … Following the demolition of the buildings on the CPO land, the flank wall of the unauthorised extension to 1 Algarve Road is currently being held in place by steel structural supports embedded into the ground within the site of 320 Earlsfield Road. These need to be removed before the approved development can proceed on the CPO site.”
[13]Under the heading “Comment” the officers’ report included the following passage:
“Section 178 of the Town and Country Planning Act 1990 enables the local authority to take action in default of the owners not complying with an enforcement notice … The owner’s representative has made it clear that there is no intention to comply with the notice. In the circumstances, therefore, it does not appear that there are any grounds upon which the owner could successfully mount a challenge against the Council for acting “unreasonably”
. The property is currently occupied for residential purposes and it is believed that the travel agency business formerly within the ground floor of 318-320 Earlsfield Road, which was demolished in the autumn of 2006, has been moved into 1 Algarve Road, at least for the time being. The demolition and rebuilding would inevitably have a disruptive effect on the current occupiers and it is likely that the occupants would need to find temporary alternative accommodation. Default action could result in substantial costs of demolition and rebuilding works but these expenses would be recoverable by the Council by a charge on the land. If the minimal rebuilding option were chosen, which would involve the Council carrying out the demolition and leaving the remaining building weather tight, the owner would be responsible for the completion of the works in compliance with the enforcement notice. This could lead to a considerable delay in the completion of those works, the need for further legal action to secure full compliance and the building possibly being uninhabitable and becoming an eyesore in a vicinity where the Council has just succeeded in removing another eyesore. It is therefore recommended that the Council should undertake the full rebuilding works, as required by the enforcement notice, in the absence of any co-operation from the owner of the land.”[14]The officer’s recommendation to the members was this:
“Authorise action under Sections 178 and 179 of the Town and Country Planning Act 1990 to allow the works required by the enforcement notice to be carried out by the local planning authority as works in default and any subsequent legal action to ensure compliance with the requirements of the enforcement notice, which requires the removal of the unauthorised extension and all materials forming part thereof from the land to its former condition before the breach took place, and the recovery of the Council’s expenses in so doing.”
The minutes of the committee meeting record the fact that the committee adopted that recommendation as its resolution.[15]On 22 June 2007 the Council’s solicitors wrote to Mr Rapose informing him of the Council’s intention to enter the land and carry out the work required by the enforcement notice in default of compliance with the notice, and stating that the work “will include the demolition of the whole of the unlawful extension, as referred to in the enforcement notice and the rebuilding of the rear part of the property to resemble its former condition.”[16]Setting out the Council’s understanding of the Council’s decision to avail itself of its powers under sections 178 and 179, the Council’s Enforcement Team Leader, Mr Arwel Williams, states in his witness statement:
“2.7 The Council’s position is that the application made by Mr Rapose, and the permission granted in June 2003, was significantly different from a scheme which might have been submitted to retain the unauthorised extension. The June 2003 Permission only granted permission as an opportunity to regularise the position with the group of properties then within the Mr Rapose’s control and to subject them to a single comprehensive development. The June 2003 Permission did not permit the freestanding retention (or construction) of the unauthorised extension at 1 Algarve Road but only permitted development at 1-3 Algarve Road as part of a comprehensive scheme across a combination of three sites. No such comprehensive scheme was built and it cannot now be built because the applicant and his family has lost control of the majority of the site. 2.8 It is difficult to be precise, but the position of the walls of the unauthorised extension appears to generally coincide with those shown as a small part of the comprehensive development approved under the 2003 Permission (AW 10 plan, and AW 11 section). The majority of the walls of the current extension would be found in broadly the same place as the proposed internal walls in this part of the comprehensive development but a short section of the proposed wall would be external, abutting the boundary with 3 Algarve Road, and would have been in the same position as an existing section of wall within the unauthorised extension, although the alignment of the section nearest the rear wall of 1 Algarve Road seems different to the actual position of the existing wall. The fact that there is some coincidence between some of the walls built and some aspects of the development permitted by the June 2003 Permission does not mean that they have been granted permission. 2.9 In granting planning permission, the Council does not usually approve the exact position of internal walls, since these are outside planning control and are merely treated as indicative, and could be modified by the developer as part of the redevelopment works, provided there was no material effect on the external appearance of the building. It would therefore be wrong to treat the internal walls shown in the plans for the June 2003 Permission as definitive as they would have had to have been had they been advanced as the walls for a freestanding extension. 2.10 The approved height of the development is 10.6m at its highest point (at the top of the parapet walls). There is a discrepancy between this height, which is shown on the approved elevations and the height of the same part of the building shown on the section drawing (AW 10 and AW 11), which shows the overall height as 10.1m. It is this section drawing which shows the height of the rear part of 1 Algarve Road, and it is shown as being approx. 9.7m high on that approved plan. This is significantly higher than the height of the existing extension, which was measured at 7.1m in January 2002, when works were nearing completion. It follows that the unauthorised extension does not correspond even with that part of the development permitted in June 2003 which stands on the land at 1 Algarve Road. 2.11 It follows that the retention of the extension is not consistent with the development approved by the June 2003 Permission and is not authorised by it. 2.12 There is nothing in the June 2003 Permission which confirms that the walls of the unauthorised extension would necessarily be retained as they are. The extension was not the subject of a Building Notice and does not benefit from a Certificate of Completion under the Building Regulations. The developer did not supply the Council with structural drawings or calculations for the unauthorised extension. Indeed it was because there was doubt and concern about the structural stability of the unauthorised extension that the Council decided to erect metal buttresses against the flank wall of the extension at the time of the demolition of the adjoining site, which had been acquired under compulsory purchase powers. 2.13 Had the comprehensive development taken place there might have been a requirement to rebuild the existing walls because of their structural integrity. However this question will remain unanswered because the approved development cannot proceed because the Claimant no longer has ownership or control over the majority of the site and it has been compulsorily acquired. …”
[17]Having explained (in paragraphs 2.13 to 2.17 of his witness statement why it is that the Council contends that the development approved by the 2003 permission has not been lawfully begun, Mr Williams states, in paragraphs 2.18 and 2.19 of his witness statement:
“2.18 The Council therefore considers that it is justified in continuing with its enforcement action and pursuing the removal of the extension, in accordance with the enforcement notice. Had the comprehensive development been constructed there would, of course, be no need or authority to proceed with enforcement action. This was the reason for the comment in the Committee Report of 19 June 2003 “… because the unauthorised extension at 1 Algarve Road is incorporated as part of a comprehensive redevelopment of the site the reasons for the enforcement action to secure its removal are largely overcome”
. Summary of the Council’s contentions 2.19 The Council’s case … is therefore in summary that: (1) in the absence of development in accordance with the June 2003 Permission the reasons for serving the enforcement notice stand and that the notice remains extant and enforceable; (2) There is no planning permission for the erection of a freestanding construction but only for a larger comprehensive scheme; (3) The June 2003 Permission was granted conditional upon the development being implemented on a comprehensive basis and that no part of it should be occupied prior to the completion of all works to the satisfaction of the local planning authority. The Council considers that this is an important condition which goes to the heart of the decision. … (4) The development approved in the June 2003 Permission is materially different when compared to the extension and Mr Rapose also seeks to retain something which would not in any event have been permitted other than as part of a comprehensive scheme over land no longer within his control, and is seeking to do so in defiance of the requirements of the enforcement notice. The 27 June 2003 does not permit the unauthorised extension to be retained on its own; (5) The June 2003 Permission was subject to a usual time condition, in this case requiring that the development should be commenced within five years of grant. It has not been lawfully commenced in accordance with its terms and details approved, e.g. under Condition, have not been carried out as approved; and (6) There is therefore no basis, having regard to s.180 of the 1990 Act, to consider that the enforcement notice is no longer in effect or that the Council is no longer empowered to enforce against the extension.”

Summary of the Council’s contentions

[18]Mr Jonathan Ferris, for the Council, has drawn attention to the fact that in the view of engineers and others advising the Council the extension to No.1 Algarve Road requires support from the site compulsory acquired by the Council in Algarve Road. Such support is in place. The flank wall of the extension is buttressed. The buttressing reduces the space available for development on the land the Council has compulsorily acquired. That land remains undeveloped and behind hoardings and cannot be cleared for the proposed scheme of social housing which the Council wishes to see carried out. Part of the unauthorized extension is built over the boundary between No.1 Algarve Road and the Earlsfield Road site and can only safely be removed if the whole of the extension is demolished. It is therefore important, Mr Ferris submitted, for the Council to be able to exercise its “right” to remove the extension.[19]Mr Williams produced (as exhibits AW10 and AW11 to his witness statement) copies of the “Earlsfield/Ground” and “Earlsfield/Section A” drawings referred to in and incorporated into the 2003 permission, annotated with information about the development permitted and its relationship with the extension to 1 Algarve Road. In an agreed statement of facts produced on behalf of the two principal parties to the claim, it has been explained that, when measurements are taken from photocopies of the original drawings in those two exhibits, the length of the party wall shown hatched where it runs along the boundary between No.1 Algarve Road and No.320 Earlsfield Road is 8.4 metres; the length of the section of wall shown cross-hatched, including the French window, is 2.9 metres; the length of the area in the rear part of No.1 Algarve Road which is shown hatched (taken to the inside faces of the party wall) is 4.6 metres; the height of the top of the flat roof of the approved development shown on the section drawing in exhibit AW11 is 9.7 metres; the height above ground level of the top of the parapet wall running alongside the flat roof is 10.2 metres (not 10.1 metres as had been stated by Mr Williams in his witness statement); and the approximate height of the extension is 7.1 metres. For the Claimant and Mr Cyril Rapose it has been stated that all of those measurements should be taken as being approximate.

The law

[20]Section 55 of the 1990 Act provides, so far as is material:
“(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development” means the carrying out of building … operations in, on, over or under land, … (1A) For the purposes of this Act “building operations” includes – (a) demolition of buildings; (b) rebuilding; (c) structural alterations or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder.

(e) …”

. Section 56 provides, so far as is material:
“(1) Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated – (a) if the development consists of the carrying out of operations, at the time when those operations are begun; … (2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. (3) The provisions referred to in subsection (2) are sections 85(2), 86(6), 87(4), 89, 91, 92 and 94. (4) In subsection (2) “material operation” means – (a) any work of construction in the course of the erection of a building; …”
. Section 57 provides “(1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land. …”. Section 178(1) provides, so far as is material:
“Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may – (a) enter the land and take the steps; and (b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.”
Section 179 provides, so far as is material: “(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken …, the person who is then the owner of the land is in breach of the notice. (2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence. … ” (a) demolition of buildings; (b) rebuilding; (d) other operations normally undertaken by a person carrying on business as a builder. (a) if the development consists of the carrying out of operations, at the time when those operations are begun; … (a) any work of construction in the course of the erection of a building; …”. (b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.” … ” 18. Section 180 provides, so far as is material: “(1) Where, after the service of – (a) a copy of an enforcement notice; … planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as is inconsistent with that permission. … (3) The fact that an enforcement notice … has wholly or partly ceased to have effect by virtue of this section shall not affect the liability of any person for an offence in respect of a previous failure to comply, or secure compliance with a notice.” 19. Section 336 defines a “building” for the purposes of the 1990 Act as including “any structure or erection, and any part of a building, as so defined …”; and “development” as having the meaning given in section 55.[21]In London Borough of Havering Council v The Secretary of State for the Environment [1983] J.P.L. 240 the court had to consider the effect of the provision in the previous legislation corresponding to section 180 of the 1990 Act, namely section 92 of the Town and Country Planning Act 1971, which provided:
“(1) If, after the service of an enforcement notice, planning permission is granted for the retention on land of buildings or works, or for the continuance of a use of land, to which the enforcement notice relates, the enforcement notice shall cease to have effect in so far as it requires steps to be taken for the … discontinuance of that use …”
. Hodgson J. held that a planning permission would be effective to override an enforcement notice, even though it did not go precisely to the matters covered by the enforcement notice and even though it contained conditions, as long as it covered the same area of land and the use permitted by the permission embraced the use enforced against. In that case, which concerned enforcement action against a material change of use and a planning permission which had been granted for effectively the same use, it was submitted that section 92 of the 1971 Act only applied where the planning permission was to do precisely that which was enforced against, and if the permission had conditions attached to it the section did not apply, at least to the extent that the conditions affected the use. The area of land to which the enforcement notice related was the same as that covered by the grant of planning permission. Counsel agreed that effect could be given to the words “in so far” in section 92(1) if one assumed an enforcement notice against mixed uses and a subsequent planning permission as to only one of them, or if the permission related to only part of the site. Hodgson J. said (at p. 262):
“It seems to me that the object of section 92 must be to remove an anomaly that would otherwise arise if one had contemporaneously an enforcement notice against a use and planning permission for that use. If … one assumes that all the conditions attached to the grant of planning permission have been complied with, one would clearly have a permitted use for storage against which an enforcement notice was still in force. Nor does any difficulty arise in respect of enforcing compliance with the conditions in the planning permission. The quashing of the enforcement notice does not mean that a use of the land for storage without complying with the conditions is lawful. It is not, and the planning authority can enforce compliance. …”
Considering the situation in which conditions attached to the permission had not been complied with and the permission not implemented, Hodgson J. said this (at p.262):
“…[Counsel] submits that a permission with conditions attached is not the sort of permission envisaged by section 92(1) when the conditions have not been complied with and the permission not, as he puts it, implemented. I do not thinks that that argument can be sustained. The section plainly deals with the “granting”, not the so-called “implementation”, of planning permission, and it is not possible to read it as meaning that the enforcement notice shall only cease to have effect when all the conditions in the permission have been complied with.”
[22]In Cresswell and Cresswell v. Pearson (1998) 75 P. & C.R. the Divisional Court (Brooke L.J. and Blofeld J.), endorsing the construction adopted by Hodgson J. in the Havering case, rejected the argument that an enforcement notice would merely be put into suspense while a temporary planning permission subsisted. Brooke L.J. saw the central question in that case as being “not whether the temporary planning permission causes the enforcement notice to cease to exist but whether it causes it to go into a state of suspended animation, like some latter-day Rip Van Winkle or Frederick Barbarossa, capable of being revived so as to be of full effect when the period of temporary planning permission comes to an end”. The court answered that question in the negative.[23]The effect of section 180, however, is not that the enforcement notice ceases to have effect altogether, but only that it ceases to have effect to the extent that its requirements are inconsistent with the subsequent grant of planning permission. In R. v. Chichester Justices, ex p. Chichester District Council (1990) 60 P. & C.R. 342, the local planning authority had issued an enforcement notice requiring the demolition of a two-storey building erected without planning permission. Having appealed against the notice the landowner constructed a single storey extension to the building. The authority issued another enforcement notice requiring the demolition of the extension, and the landowner appealed against that notice. The result of the appeals was that the enforcement notices were varied and upheld so as to require the first floor of the main building and parts of the extension to be demolished. The landowner did not comply with the notices but sought and gained planning permission for a single storey building and alterations to the existing extension. When the authority instituted proceedings for the landowner’s failure to comply with the enforcement notices the magistrates refused to commit him for trial, concluding that there was no case to answer because the grant of planning permission had rendered the notices void under section 92 of the 1990 Act. The Divisional Court (Neill L.J. and Roch J.) quashed that decision, holding that the magistrates ought to have looked at the buildings for which planning permission had been granted, and that the enforcement notices had ceased to have effect only to the extent of those buildings and remained effective for the other development at which they had been aimed. Roch J. considered the correct interpretation of section 92 of the 1971 Act (at pp. 345 and 346):
“Two matters have to be observed in construing this section. First, the definition of building includes “any part of a building” … Secondly, Parliament did not provide, where planning permission is granted for the retention on land of buildings to which an enforcement notice relates after the service of the enforcement notice, that that notice shall cease to have effect altogether. Thus, Parliament intended that parts of buildings, and not merely entire buildings, should be affected by enforcement notices and by section 92(1), and Parliament did not intend the subsequent grant of planning permission for buildings, or a building, or parts of a building, to which an enforcement notice related should have the effect of completely nullifying the enforcement notice. What then is the effect of section 92(1)? Enforcement notices cease to have effect in so far as they require steps to be taken for the demolition or alteration of those buildings. … “Those buildings” must refer to the “building” for the retention of which planning permission has been granted subsequent to the service of the enforcement notice. The magistrates should have looked at the “buildings” for which planning permission was granted on February 16, 1988; namely the buildings described in the application No. SB/172/87, and the plan which is stamped with that reference and the date of October 1, 1987, by the applicants. To the extent of those buildings the enforcement notice was to cease to have effect. The parts of the buildings which were already on the land without permission which are detailed in those documents are to be retained. Nothing shown on those plans which is already in existence at Brook Farm, Prior Leaze Lane, Hambrook has to be demolished or altered. To that extent the enforcement notice ceases to have effect. This result in my opinion, not only gives the section its ordinary and natural meaning, but it also accords with common sense. There is no need to demolish the original building constructed without planning permission in its entirety and then rebuild a new building, much of which would coincide with the original building. The building constructed by Mr Knight has to be altered, and parts of that building removed, so that it becomes the building permitted by the planning consent which has been granted since the service of the enforcement notice.”

Submissions

[24]For Mr Rapose, Mr Reuben Taylor has submitted, first, that the extension of the building at No.1 Algarve Road which was the subject of the Council’s enforcement action was, at least in part, retrospectively permitted by the June 2003 planning permission; secondly, that the June 2003 planning permission was lawfully implemented; thirdly, that, in any event, section 180 of the 1990 Act has the effect of rendering the enforcement notice of no effect against the part of the extension which was compatible with the development approved by the planning permission; and fourthly, therefore, that the Council’s decision to take direct action to secure unqualified compliance with the enforcement notice was unlawful. Those submissions were generally supported by Mr de Mello, for Mr Cyril Rapose.[25]Mr Taylor submitted that the 2003 planning permission was a “hybrid” permission, part retrospective, part prospective: retrospective (under s.73A of the 1990 Act) for the works already carried out, prospective (under section 70 of the 1990 Act) for the works yet to be carried out. Relying on the principles to be seen in the Havering case and in Cresswell v. Pearson, Mr Taylor submitted that if, as he contended, the 2003 permission granted retrospective planning permission for works comprised in the extension, the enforcement notice was now of no effect against those works.[26]Mr Taylor also submitted that anyone comparing the drawings to which the 2003 planning permission relates and the development which exists on the ground would realize that parts of what is shown on those drawings have already been built. He pointed to the description of the proposed development in the application form, to the deliberate division between existing and proposed new development in the calculation of the application fee, and to the Council’s officers having acknowledged in the committee report and the Council itself having acknowledged in it summary grounds that the unauthorized extension is “incorporated” within the comprehensive development for which approval was given in the planning permission. Thus it is clear, Mr Taylor submitted, that the planning permission was for a development that included development already carried out, and, in particular, the extension to No.1 Algarve Road the removal of which had been required by the enforcement notice. Mr Taylor relied on the decision in Cardiff City Council v. The National Assembly for Wales [2007] 1 P. & C.R. for the proposition that a development carried out pursuant to a planning permission but not yet completed is lawful, and pointed also to the power of a local planning authority to serve a notice requiring development to be completed (sections 94 and 95 of the 1990 Act), a procedure which cannot, however, affect development not yet carried out (section 95(5)).[27]For the Council, Mr Ferris accepted that section 180(1) of the 1990 Act has the effect that if planning permission for development is granted any inconsistent extant enforcement notice ceases to have effect to the extent of its inconsistency with the permission. However, he submitted, first, that the 2003 permission is not inconsistent with the enforcement notice because it did not grant a permission for a freestanding extension; secondly, that the development approved by the 2003 permission was materially different from the building against which the Council enforced; and thirdly, that neither the letter nor the purpose of section 180(1) applies to the circumstances of the present case, the aim of that provision being to prevent the continuation of enforcement against development which has gained planning permission subsequent to the service of an enforcement notice. Mr Ferris observed that the 2003 permission approved the comprehensive development of the land, including, but not confined to, the site to which the Council’s enforcement notice had related, and embracing also the dwelling-house at No.3 Algarve Road and the much larger area of land at Nos. 312 to 320 Earlsfield Road. It did not approve the unauthorized extension to No.1 Algarve Road or any development which was not a comprehensive development of the larger area. The extension to No.1 Algarve Road was not authorized by the 2003 permission. Whilst the two sites overlap, the development the Council approved does not match the dimensions, floor space and physical form of the extension constructed without approval. Mr Ferris referred, in particular, to two factors which he suggested were material: first, that the drawings for the 2003 permission show internal walls in the approximate position of the outside walls which have been constructed on the site, and that such internal walls are not subject to planning control, and, secondly, that there is a difference of some two metres in the height of the rear part of the extension, which is a significant disparity. Moreover, the extension was not constructed in accordance with the conditions imposed on the 2003 permission, including condition 9 which required the carrying out of a “comprehensive” development. As the reason given for the imposition of condition 9 on the 2003 permission makes clear, the Council had countenanced the development of the site on which the extension stood only if formed part of a comprehensive scheme relating to the larger site. Mr Ferris also submitted that the 2003 permission is now incapable of implementation, for two reasons: first, because, as a result of the confirmation of the CPO and the vesting of the compulsory purchase order land in the Council, the ownership of the land is now divided, and, secondly, because the permission has expired, the five years within which development had to be begun having expired without its being lawfully implemented, conditions 3, 4 and 9 having not been complied with and such works as might be attributable to the permission having not been sufficient to amount to material operations within section 56 of the 1990 Act.

Discussion

[28]Section 180 of the 1990 Act serves to protect from proactive enforcement development which is the subject of an extant and valid enforcement notice, if and to the extent that the retention of that development is not inconsistent with a subsequent grant of planning permission. The statutory language is clear. The effect of this provision in the legislation is to cancel – not merely to suspend – the effect of an enforcement notice, but to do so to no greater and no lesser extent than the notice is “inconsistent” with a subsequent grant of planning permission “for any development”. The notice is then to “cease to have effect so far as inconsistent with that permission”. The protection afforded by section 180 is activated not upon the implementation of the subsequent planning permission but upon its being granted (as Hodgson J. emphasized in the Havering case (at p. 262). Section 180 does not stipulate that the site in respect of which planning permission is granted subsequent to the service of the enforcement notice must be the same as the site in respect of which enforcement action had been taken.Nor is the provision directed simply and solely at the situation in which planning permission is later granted for precisely the same development as is the subject of an enforcement notice. Nor again, as a matter of principle, does it make a difference to the overriding effect of the subsequent grant of permission that conditions restricting or regulating the development are imposed on that permission. As Hodgson J. observed in the Havering case (at p.262),any failure to comply with conditions on the permission can be addressed by separate enforcement action, which under the 1990 Act could now, in an appropriate case, take the form of a breach of condition notice (section 187A of the 1990 Act).In these basic respects there is no distinction to be drawn between planning permissions for changes in the use of land and permissions for operational development. If a local planning authority serves an enforcement notice to attack the use of a site and that use is later approved by a grant of planning permission, the enforcement notice will be inconsistent with the planning permission and will no longer bite on that use. Likewise, if an enforcement notice attacks operational development and the local planning authority, or the Secretary of State on appeal, grants planning permission for only a part of the works comprised in that development, or for those works or a part of them within a larger and more extensive scheme, the question that arises under section 180 is whether or not, and if so to what extent, the enforcement notice is inconsistent with that permission.[29]For the purposes of the present case the critical words in section 180, as Mr Taylor has submitted, are “so far as”. These words make it clear, among other things, that it is not necessarily a completed development to which section 180 relates. In my judgment, the main question to be considered here is not, as the Council appeared at least originally to contend, whether the 2003 planning permission did or did not permit the unauthorized extension to be retained on its own, but whether there are elements of development common to both the permission and the enforcement notice. As Mr Taylor submitted, if there is fabric which forms part of that which the planning permission approved, the enforcement notice cannot thereafter be relied upon to attack that much of the development. Conversely, however, the enforcement notice continues to be effective against so much of the fabric as is not approved by the planning permission.[30]In the present case, there are factors which point clearly to the conclusion that the 2003 permission partly cancelled the effect of the enforcement notice.[31]In the first place, it is significant in my view that the Council entertained and determined the application for planning permission on the explicit basis that the proposal it contained incorporated part of the unauthorized extension which had previously been the subject of enforcement action. There was nothing accidental about this; it was quite deliberate, and in the circumstances not surprising. It appears that the fee for the application was apportioned – though it is not clear to me quite how this was done – as between the retention of the extension and the remainder of the development proposed. And, as might have been expected, the development that had already been built on the land without the benefit of planning permission was reflected, to some degree at least, in the drawings approved for the comprehensive scheme. The precise extent to which the two coincide may be in dispute, but not the fact that at least partly they do. I accept that, in this instance, all of the works shown in the approved drawings which are incorporated into the permission were expressly approved by the grant. The submitted drawings were expressly incorporated into the permission (see R. v. Ashford Borough Council, ex parte Shepway District Council [1999] P.L.C.R. 12, at p. 19C-F; and Barnett v. Secretary of State for Communities and Local Government [2010] 1 P.&C.R. 8).Thus, to the extent that the application drawings showed development which was already on the ground, previously unauthorized as it was, the permission which embraced those drawings approved the retention of that development.[32]Secondly, it seems plain that there are parts of the development that had been attacked by the enforcement notice which are physically subsumed in the development for which the Council granted planning permission. This much is clear from the annotated drawings produced by Mr Williams as exhibits AW10 and AW11 to his witness statement, and from his description of the development approved by the 2003 permission and its relationship to the enforced against extension. What was actually built on the site clearly coincides to a material extent with what was proposed in the drawings submitted for approval in the August 2002 application and expressly approved in the subsequent grant. Paragraph 2.8 of Mr Williams’ witness statement concedes that there is at least “some coincidence between some of the walls built and aspects of the development permitted by the June 2003 Permission”, though he adds his view that this does not mean they have been granted permission. Mr Williams’ drawings show that there is fabric – forming the L-shaped portion of the walls of the extension shown hatched on those drawings – that is comprised both in the development which the enforcement notice required to be removed and the development approved by the planning permission.As Mr Taylor submitted, a vertical structure rising to a height of 7.1 metres which has been erected on a particular alignment is consistent with a structure 9.7 metres tall erected on the same alignment. The difference in height does not signify that this part of the extension is not comprised in the development approved by the 2003 permission. This is, in principle, though of course the facts are different, the kind of situation with which the court was faced in the Chichester case. Applying the rationale of the decision in that case, which Roch J. found to be in accordance with common sense, one can readily appreciate that such fabric would have required some adaptation and further construction in order to incorporate it into the development for which the Council had granted permission, rather than being taken down in its totality only to be put up again on the same alignment and using the same or similar materials. As Roch J. said (on p.346), there is no need to demolish the original building constructed without planning permission in its entirety and then build a new building.[33]In my judgment, a conclusion in the present case consistent with the approach and outcome in Chichester is not prevented by the fact that the development approved by the 2003 permission was much larger than the unauthorized extension and would occupy a more extensive site, or by the fact that the roof on the development approved by the 2003 permission would be set at a higher level, supported on walls taller than those forming the unauthorized extension, albeit, at least in part, on the same alignment. I am unable to accept the submission made by Mr Ferris that the retention of these sections of wall cannot be regarded as being consistent with the development for which the Council gave approval in granting planning permission because they are not of the same height as the walls in the application scheme and so must be seen as constituting a wholly different element of structure. That submission does not in my view accord with the clear language of section 180.To the extent that the structure is common to the permission and the enforcement notice section 180 operates to prevent the enforcement notice from continuing to bite upon it. To that extent, the enforcement notice and the planning permission are inconsistent. This is the force of the words “so far as” in subsection (1) of section 180.[34]Nor can I accept the argument that section 180 has no bearing on the present case because the L-shaped portion of structure would have constituted only internal walling in the development approved by the 2003 permission, whereas it was a part of the external fabric of the extension. As Mr Taylor pointed out, when the 2003 permission was granted, at least part of the extension adjoined the neighbouring building. When that building was demolished, parts of the internal walls of the extension became exposed, but those parts of the walls would again be internal once the development approved by the 2003 permission had been completed. I do not think one can ignore the fact that the 2003 permission approved the whole of the development shown in the submitted drawings, including internal walls. It would not be correct, in my view, to ignore this fact when considering the effect of section 180 in the present case. To do so would be difficult to reconcile with the decision of the House of Lords in Sage v. The Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22 holding that, for the purposes of section 171B(1) of the 1990 Act, in considering the question of whether building operations are “substantially completed”, it is not appropriate to adopt the criterion that such operations are complete when those activities which require planning permission are complete (per Lord Hobhouse of Woodborough (in paragraph 7); that what is substantial completion must always be decided as a matter of fact and degree; that in the case of a dwelling-house substantial completion would involve the carrying out of works essential for a completed dwelling-house (per Lord Hobhouse (in paragraph 20). Lord Hobhouse said (in paragraphs 23 to 25):
“23. When an application for planning consent is made for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: s.92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted this with a case where the building has been completed but is then altered or improved. … . 24. The same holistic approach is implicit in the decisions on what an enforcement notice relating to a single operation may require. Where a lesser operation might have been carried out without permission or where an operation was started outside the four year period but not substantially completed outside that period, the notice may nevertheless require the removal of all the works including ancillary works: Ewen Developments Ltd v Secretary of State for the Environment [1980] JPL 439, CA; Howes v Secretary of State for the Environment [1984] JPL 439, Hodgson J; SomakTravel v London Borough of Brent [1987] JPL 630 Stuart Smith J. … 25. These decisions underline the holistic structure of planning law … .”
Lord Hope of Craighead, agreeing with Lord Hobhouse, observed (in paragraph 7) that regard should be had to the totality of the operations originally contemplated and intended by the developer, which “will be an easy task if the developer has applied for and obtained planning permission.”[35]Mr Williams (in paragraphs 2.12 and 2.13 of his witness statement) has questioned the structural integrity and stability of the existing walls, observing that it was for this reason that the Council put up metal buttresses against the flank wall of the extension at the time when the building next to it was taken down. These, however, are not matters that go to the planning position. They are governed by a separate regime of statutory control, in the Building Regulations.[36]It has also been pointed out that the walls of the extension were constructed in blockwork whilst in box 10 of the application form, which required information to be given about the materials to be used in the walls of the development, the use of “stock bricks” was specified. I do not think this is of any significance. I take the reference to “stock bricks” to relate to the materials to be used in the external walls of the development, and I did not understand Mr Ferris to dissent from this on the Council’s behalf.[37]The Council has attached some significance to the fact that when it granted the 2003 permission it was determined to ensure that the whole of the comprehensive development was carried out. It was emphasized by Mr Ferris that, but for that imperative, approval for the scheme would not have been given. Condition 9 was said to go to the heart of the planning permission. I am in no doubt that it does. However, the condition does not render unlawful acts of development that are otherwise in accordance with the grant being undertaken piecemeal rather than “on a comprehensive” basis”. Its purpose is to ensure that the development is completed once it has been started. This could hardly mean that it was a breach of condition 9 to start the development. That would be an absurd concept to suggest. If it were to be understood as preventing any development taking place before the entire development was completed, the condition would defeat its own purpose. None of the development could then be lawfully built. Properly construed, condition 9 precludes the occupation of any part of the development approved by the 2003 permission until the whole of the development has been completed. It is with this sanction that the condition seeks to achieve the objective of securing the implementation of the development “on a comprehensive basis” rather than piecemeal. If the Council had wanted to achieve this objective in a mandatory way it could have served a completion notice under section 95 of the 1990 Act. It has not done that. But, in any event, such parts of the development as have been undertaken are lawful notwithstanding that other parts of it have not been (see Cardiff City Council v. National Assembly for Wales and Malik [2007] J.P.L 60). The fact that condition 9 sought to compel the “comprehensive” development of the site did not preclude individual acts of development in the form of “material operations” which would contribute to the completion of the whole, or render unlawful such operations in so far as they had already been carried out before that date. As I have already said, to the extent that those operations are within the scope of the enforcement notice, which required the removal from the land of “the extension and all materials forming part thereof”, the permission and the notice are inconsistent. Thus, even if one regards condition 9 as an essential and inseverable element of the planning permission the Council granted in June 2003, it does not overcome the inconsistency between the enforcement notice and the permission.[38]Both sides made more general submissions on implementation, focusing in particular, in the light of authorities including F.G.Whitley & Sons v. The Secretary of State (1992) 64 P. & C.R. 296 and Hart Aggregates Ltd. v. Hartlepool Borough Council [20005] EWHC 840, on the potential consequences of development having been begun, if it was, before the conditions in negative form on the 2003 planning permission had been sufficiently discharged. That question does not bear on the issue as to the inconsistency between the enforcement notice and the planning permission, which is what section 180 concerns. It is neither necessary nor appropriate for the court to determine it in the present proceedings, and I do not propose to do so. However, I would accept Mr Taylor’s submission that, in so far as the development for which planning permission was granted had been carried out prior to the grant of the 2003 permission, if the pre-existing works comprised in the development approved by the permission were in breach of any pre-commencement condition from the instant when the permission was granted, such a condition could never have been complied with and the development could never have been lawfully implemented; and that this cannot be right. If one were to adopt a benevolent interpretation of them (as was encouraged by the court in Carter Commercial Developments Ltd. v. Secretary of State [2002] EWHC 1200 (Admin.)), it would be apparent, I believe, that the conditions requiring further approvals of detail were directed at the works which were yet to be carried out at the time when permission was granted, not at those which already had been.[39]The Council’s resolution under challenge in the present proceedings authorizes direct action against the whole of the extension. It seems that, when it so resolved, the Council’s committee did not appreciate what the consequences of the operation of section 180 of the 1990 Act would be for its enforcement notice, given the grant of the 2003 permission. It was advised that the development in that permission had not been commenced. Perhaps it was for this reason that the committee did not grapple with the question of whether and to what extent there was congruence between the unauthorized extension and the corresponding parts of the development approved by the 2003 planning permission. At any rate, it does not appear to have asked itself whether, in view of the 2003 permission having been granted, the full rigour of the enforcement notice requirements would now have to be tempered to take account of the implications of that grant. This failure in itself, in my view, is sufficient to vitiate the Council’s decision to proceed with action under sections 178 and 179 of the 1990 Act. The question of whether the enforcement notice was inconsistent with the planning permission, and the precise extent to which it was, were matters of fact and degree for the Council as local planning authority to determine, subject to review by the court on normal public law principles. There is enough in the material before the court to demonstrate that such an exercise was called for in this case, and that it was not undertaken. The action under sections 178 and 179 authorized by the committee’s resolution would have had serious consequences for those affected. It was, therefore, important that the practical implications of section 180 for such action were properly understood and carefully considered. In my judgment, that did not happen here. The Council’s decision cannot, therefore, be allowed to stand.[40]I recognize that there will be cases in which the consequences of the exercise which the Council has failed to perform in the present case will be unintended or artificial, or both. This case may be one. However, such consequences flow not from the court’s decision but from a local planning authority having chosen to proceed as it did. I can well appreciate too that, from the Council’s point of view, it must be frustrating to see no progress being made with the development of the land that is the subject of the compulsory purchase order, and also that the public interest may well demand that progress is made, if it can be, without further delay. But such concerns cannot displace a true analysis of the status of the development that has been undertaken at No.1 Algarve Road, in the light of the planning permission which the Council granted in June 2003. The Council is by no means left without any recourse as a result of my decision. It will, for example, be able to consider whether it would be right to proceed again under sections 178 and section 179 of the 1990 Act, on a modified basis. It has powers under sections 97 and 102, respectively, to revoke or modify a planning permission and to make a discontinuance order, either of which could give rise to an entitlement to compensation. But it is not for the court to advise the Council what to do next, or to speculate as to the practical and financial consequences of whichever course of action it may now choose to follow.

Conclusion

[41]For the reasons I have given this application succeeds and the Council’s decision of 15 March 2007 must be quashed.

Cited in 1 later judgment