"7. I have been presented with a whole raft of different plans and drawings. They demonstrate that the design of house the Arnolds were seeking to create evolved over time with numerous changes. Having said that although there were different stages of construction the main builder (Mr Brooks) explained that there was only one short break (around the end of December 2011 to early January 2012) in the building work. I therefore agree with the Council's submission that the stages were all part of one single building project that was being implemented with no significant gaps between the stages. 8. The Mr Arnold's (sic) evidence explains why they did not wish to pursue the development as shown on the plans that accompanied the LDCs or to completely demolish the house and start from scratch. A particular concern was that the width of the front extension shown on the LDC plans, following that of the existing front projection, which was felt to be too narrow and "would not achieve the goal of improving the flow of the home"
"It is common ground based on the evidence of witnesses from the main parties that the only elements of the original extended dwelling that remain are parts of the walls of the western wing. These can be generally described, based on the photographs supplied, as part of the south facing wall (to the top of ground floor windows), the two storey west facing gable (partly tile-hung) and a small section of supporting 'return' wall on the northern elevation. The rest of the existing dwelling, including all the slabs, footings and foundations other than those remaining beneath the walls of 'original' building, are new building works that have taken place since work commenced in September 2011."
"Without planning permission operational development comprising of the erection of a building to be used as a dwellinghouse in the (sic) as shown hatched in black on the attached plan."
"14. The submission for the appellants is that although very little of the original fabric remained by 14/12/11 that is not the critical point as regard has to be had to the staged nature of the development – which it is claimed proceeded on a lawful basis as it was either not development, having regard to s55(2)(a) of the Act, or PD by virtue of the rights conveyed by the GPDO – and to the intentions of the appellants. 15. Dealing with the latter point I do not accept that the intentions of the Arnolds is a critical determining factor when considering a matter of law. They may well have intended a whole range of things and indeed it is manifestly clear from their own evidence that these intentions changed and were modified as the development progressed. Be that as it may the important point is the outcome which as the Council submits is that to all intents and purposes the original dwelling had been demolished – barring a few walls or parts of walls – before the new works of construction on the new walls and roof structure commenced. 16. Stepping back from the finer detail the question to ask as 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 PD rights. 17. The appellants place great reliance on the argument that some works of excavation commenced before the house was vacated and the demolition of the walls and roof took place. The assertion is that these foundation works were lawful but as they were not in accordance with any LDC granted I have no way of knowing that this so. It is true that they may still have been PD even though the LDC scheme was not being followed (the wider front extension point) but even if this were so I do not consider it assists as what has resulted is not some extensions to the front and rear of the house with the majority of the original walls retained but effectively a new dwelling. 18. Notwithstanding this conclusion I turn to the case law cited to see whether this would lead to an alternative conclusion. There is no definition of a dwellinghouse in the GPDO but the case of Gravesham BC v SSE[1984] 47 P&CR 142 is still good authority for what it constitutes; that is something which has the ability to afford to those who use it the facilities required for day-to-day domestic existence. This judgment makes clear that this could apply to a holiday home occupied on a seasonal basis or a dwelling vacated to undergo extensive repairs or for sale. Thus the stripping out of kitchens and bathrooms or the addition of substantial extensions that render it uninhabitable for a period of time would not mean that it ceased to be a dwellinghouse. 19. The extent of intervention therefore could be considerable and occupation is not necessary whilst building works are undertaken. However, there must be something significant by way of a structure that remains. In the instant case there were just a few bits of wall and no roof whatsoever. Given the cumulative degree of intervention and demolition that had occurred there is no way that what remained could provide facilities required for day-to-day existence and it follows that by December 2011 the dwellinghouse no longer existed. Support for this view is drawn from an LDC appeal decision submitted for the appellants which found that the current remnants of a cottage could not reasonably be regarded as a dwellinghouse. To quote from paragraph 8 of this decision, "
"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). S174(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 s177(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 LBC v SSE [192] 224 EG 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 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 s180 of the Act, it would result in any notice ceasing to have effect in so far as it was inconsistent with that permission."
"66. Be that [arguments about arts and crafts heritage in the area] as it may, the 2nd and 4th criteria in Policy H6 of the LP require replacement dwellings to be in scale and character with the area and to respect their context and immediate surroundings. Policy G5 of the LP provides a design code for new development which covers a number of factors, including context, scale/proportion/form, roofscape and materials/architectural detailing. I have considered Mr Piper's analysis of the context and the design of houses in the immediate surrounding area. I accept that there are a range of ages and styles of dwelling in Blackheath and no consistency in the materials used. Nevertheless some coherence is provided by the modest scale of most properties and although there are examples of rendered walls, buff brickwork and timber cladding (an example being Silvercombe immediately to the south) the red brick walls, often with tile hanging, and clay tiled roofs are still the predominant facing materials that characterise houses in the area. Moreover although properties have been extended, from the information provided and my own observations, I am not aware of anything in the vicinity which is directly comparable in scale to what has been built on the appeal site or in terms of its striking modernistic appearance. 67. What I consider to be particularly incongruous and out-of-keeping with anything I could see locally is the huge expanses of glazing which seem to be randomly distributed in order to suit the internal configuration and outlook across the rear garden that was sought. The central glazed opening of 2 storeys in height is, as some objectors have commented, more akin to an office building than a dwelling. Whilst this might be an appropriate design approach in an urban location or one where there are no design parameters to follow this is not the case in Blackheath given its inherent character and rural setting. In terms of the roof design this is odd and unsettling to the eye as it includes two areas of truncated roof comprising a mainly flat deck with sloping edges. This contrived design, rather than the use of full pitched roof slopes meeting at a ridge, adds to the incongruity in appearance especially in terms of the two storey front projection. Added to this there is the use of slates on the large roof envelope which is not the predominant roofing material found in the locality. 68. These are not just my own conclusions but seem to be shared to a significant degree by Mr Piper. He refers to "the design needing to be resolved by the employed tradesmen on the 'hoof' and in an ad hoc manner in order to achieve the result visible today"
"However the shear (sic) brick and glass elevation rising through three full floors is in some respects uncomfortable and lop-sided. The imbalance is emphasised by a subtly changing solid to void proportion along the elevation from north to south along with the slightly clumsy treatment of the roof at the north edge and the scale of the central glass screen." 71. The defence against these seeming inadequacies or weaknesses in the finished design is to again plead the restrictions imposed by PD limitations and also that this elevation is seen as private one which will soften with the growth of landscaping. I agree that the impact is striking and dramatic and possibly even beguiling. However given the criticisms of Mr Piper, the only architect called to give evidence, I remain unconvinced concerning the overall design credentials of the finished development and must question his conclusion that, on balance what has resulted is an acceptable solution... 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 Framework set out above, the 2nd and 4th criteria of Policy H6 and the terms of Policy G5 of the LP."
"85. I have found that the development that has taken place is inappropriate development in the GB 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 s174(2)(a) of the Act and Richmond-upon-Thames 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 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 with Scheme C which is already the subject of a planning application under consideration by the Council. By virtue of the powers conveyed by s180 of the 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."
"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 appellant. I would add that there is also 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 alterative steps from the schemes before me not least because it is 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.
"This would strike an appropriate balance providing sufficient time for attempts to be made to reach an amicable solution over an alternative form of development."
"101. In coming to my conclusions and decision I have taken account of the human rights implications that flow fromArticle 8(1) European Convention on Human Rights and Article 1 of theFirst Protocol of the Human Rights Act 1998 . These are the rights to respect for private and family life, homes and possessions. They are not absolute rights and interference with these rights is permissible in the public interest or in the interests of the economic well-being of the country which has been found to include environmental considerations. 102. The upholding of the notice and the refusal of the deemed planning application could lead to the demolition of the house in its entirety if no suitable alternative scheme is permitted by the Council before the notice takes effect. This would infringe the Arnolds' human rights under the above Articles and would leave them in a position where they would need to find another home or at least alternative accommodation for a significant period of time. The Arnolds argue that they may lack the finances to demolish the house and build something that is acceptable to the Council whilst in the meantime paying rent for other residential accommodation over this period. I was not presented with details of their assets nor did I request them but this outcome would be likely to have a considerable impact on their financial resources. 103. Notwithstanding this finding, on the basis of my reasoning on ground (g) there do appear to be reasonable prospects of a mutually agreeable solution being found and this is not a situation where the appellants will be dispossessed of their land or where they are unlikely to be able to modify the house that exists or build an alternative on the land. As I have said above they could consider bringing a mobile home to the site which would cater at least temporarily for their accommodation needs. 104. In all these circumstances, I am satisfied that upholding the notice with the extended period for compliance would be a proportionate measure having regard to the harm that has resulted to the environment and the public interest and one which would not violate the appellants' human rights."
"The Minister in his letter of decision, after referring to the appellant's contention said that: "
"It meant that, if the arrangements were so made that the house remained a dwelling-house at all times and for all purposes, the fact that bits of it were pulled down and rebuilt did not necessarily involve planning permission because it could be argued that was a mere improvement and no more. But whether or not a particular activity was justified on that basis or not was entirely a question of fact and degree. It was not possible to observe from the result without knowing a great deal of detail about the circumstances in which the work was done. But the principle was clear enough."
"Turning back to the case before the court today and applying those principles as best one can, the real question, as May J pointed out in the course of argument, was whether the activities with which they were concerned did amount to improvement or did they amount to rebuilding. Whether or not they followed either of those categories depended, almost entirely on matters of fact and degree. The Secretary of State had made his decision upon this work, and he must conclude the judgment by referring to what he had said on the operations in this case. He had said, quoting the inspector: "
"An enforcement notice dated June 30, 1977, related to a very small building in the "green belt" at Coxtie Green Road, Brentwood, Essex. Not only was the building small, but it had the unusual feature that it only had three walls, the remaining space being used apparently as a means of access for various lorries which were repaired under its shelter. There was an existing use certificate relating to the site, which permitted the owner, Mr Hewlett, to carry on business as a scrap metal merchant and breaker, and no objection had yet been taken to his running a haulage business. The objection taken was to works which he did to this building. They apparently involved jacking up the roof, then undertaking certain operations to the walls in turn, and then at a later stage probably working on the roof itself. Mr Hewlett maintained that none of these operations, either individually or collectively, constituted development for the purposes of theTown and Country Planning Act 1971 because of the beneficient provisions of section 22(2)(a). His case was that these operations, however extensive, did not materially affect the external appearance of the building and were merely improvements; in particular, they did not amount to the creation of a new building... The third ground of appeal concerned whether this building could be a new building. It was submitted on behalf of the appellant that if it could be shown that each stage of the work was an improvement of the old building, the fully improved building had to, as a matter of law, be the same building albeit in an improved form. Therefore, unless the old building had been knocked down in the course of the works, the Secretary of State could not hold that this was a new building. This submission would in fact involve overruling two decisions of the Divisional Court: Sainty v Minister of Housing and Local Government and CW Larkin v Basildon District Council. The submission was none the worse for that, but Lord Parker CJ in Sainty's case, on which Larkin's case was to some extent founded, said this at page 434: "
"In using a simple word in common usage and leaving it undefined, Parliament realistically expected that, in the overwhelming majority of cases, there would be no difficulty at all in deciding whether a particular building was or was not a dwelling-house. The use in a statute of almost any word in common usage may give rise to difficulties of interpretation in a very small number of cases, but the problems are both fewer and less troublesome than those that are apt to result when the statute defines the word. The good sense of this is such that I do not intend to resolve the issue that arises in this appeal by attempting to define what Parliament left undefined. The more helpful approach, in my opinion, is to consider a number of buildings that quite clearly are dwelling-houses and others that equally clearly are not and to see whether this throws up any indication of what ought and what ought not to be taken into account. Consider a building that anyone would acknowledge was a dwelling-house. If it is not being lived in because, for example, the occupants are on holiday or because they have two houses and spend half the year in each, it remains a dwelling-house. Take a common situation where a family has a second house in the country that is only visited at weekends, in the summer months and for a summer holiday. That is clearly a dwelling-house. So the intention to use one's house, or the practice of using it throughout the year, is not essential. If a house is empty pending its sale or because its owner cannot, or does not want, to let it, it is still a dwelling-house. So emptiness is not fatal. If it cannot be occupied because it is flooded, or is undergoing extensive repair, it is still a dwelling-house. So, too, a second home in a remote mountainous district, cut off by snow every winter. So an ability to use it whenever one wants is not an essential either. Suppose that there is a national emergency and an order is made prohibiting the use of houses in a particular area for the duration of the emergency: they would nevertheless remain dwelling-houses. So even an inability to use a house lawfully does not necessarily prevent it from being a dwelling-house. Leaving aside extraordinary events like floods and national emergencies and repairs so extensive that the occupant has to move out, is it a characteristic of every dwelling-house that the owner or occupier could live in it permanently if he wanted to? I think not... Mr Aitchison has emphasised the "dwelling" in "dwelling-house" and has stressed that to dwell is to remain or reside. Comparatively few of those living in the buildings last mentioned ordinarily stay for long enough to be regarded as residing there. He submits, therefore, that a capacity to provide permanent accommodation is the essential character of a dwelling-house. In my judgment, however, its more distinctive characteristic is its ability to afford to those who use it the facilities required for day-to-day private domestic existence. Whether a building is or is not a dwelling-house is a question of fact. In Scurlock v Secretary of State for Wales, the Secretary of State had to decide whether a building that was used partly for residential purposes and partly for business purposes was a "dwelling-house" within the meaning of theTown and Country Planning General Development Order 1973 . He adopted a factual approach, and the Divisional Court held that that was right."
"34. (1) I accept, as did Mr Harwood, that the GPDO Class B most readily applies when examining the position before development in reliance upon it is started. But a development which would otherwise require express planning permission continues to need the permission afforded by the GPDO until it is "substantially completed" i.e. until it has reached the stage at which no further planning permission would be required for any of the works being done to it. If between the start of such works and their conclusion the building which is being altered pursuant to the GPDO is otherwise enlarged, improved or altered so that the cubic content of the "resulting building" together with the GPDO works would now exceed 50 cubic metres, those GPDO works cease to be protected by the GPDO and can be enforced against. 35. In other words, in examining whether in Class B1(d) the cubic content of the resulting building "would exceed" the cubic content of the original dwelling-house by more than 50 cubic metres, the prospectivity inherent in "would" continues to apply until the GPDO permission no longer needs to be relied on for the carrying out of any works. The availability of the GPDO is not set in stone by the mere start of works... 41. (5) It is, accordingly, my judgment that the inspector had to ask himself as at the time when the GPDO works, namely the roof extension, were substantially complete and thus at the time when the claimant last ceased to do any works for which any planning permission, express or pursuant to the GPDO, was necessary: did the cubic content of the dwelling-house, as at that time, including any actual cubic content already created by other works of enlargement, improvement or alteration ("the resulting building") exceed by more than 50 cubic metres, the cubic content of the original dwelling house? The side and rear extensions may or may not have any cubic content, but there were no findings of fact in relation to that matter... 45. (8) Instead clarity in the legal position is, in my judgment, important for these operations. That is provided by the application of the statutory provisions, however fine the distinction to which that leads, rather than by the creation of non-statutory tests. The GPDO is not well cast so as to deal with simultaneous works, or what might be seen as single building operations, but best sense is made of it if it is recognised that one should measure the roof extension against the existing cubic content whether that cubic content had recently been acquired, whether it existed at the start of the building works, or whether that cubic content had been created shortly before the conclusion of the roof extension works. One ignores prospective cubic content during that examination, however imminent that prospective cubic content might be. One ignores it because once prospective cubic content is relevant one is driven to accept as relevant that which does not, and may never, exist as cubic content. 46. (9) In view of the fact that it is inherent in the GPDO that the precise sequencing of doing works can affect the availability of the permission which the GPDO provides, I see nothing contrary to the purpose of the legislation, or to planning policy, in applying that sequencing potential to this situation. The sequence of events, and the state of affairs at the completion of works, matters for widely separated works, and also matters for those closely following upon each other's heels. There is no legal justification for switching to a non-statutory single building project approach at some stage at which detecting the separation involves a careful factual analysis and a perhaps quixotic outcome in extreme cases."
"Was the judge correct that the first respondent had an accrued right to develop the site in accordance with the details submitted in the application at least from the date of issue of the Prior Approval Notice, so that the right to develop was unaffected by the subsequent designation of the Highbury New Park Conservation Area?"
"18. The question then arises - what middle way can be found consistent with principle and the statutory language? Plainly the Development Order has to be read as a whole. Certainly Part 24 has to be read as a whole. Thus the grant of planning permission for class A development and its withholding by paragraph A.1(h) have to make sense in the light of each other. It seems to me therefore that if we contemplate the notional case of a prospective developer who has not yet taken any steps to carry forward his development - whether by seeking prior approval, commencing works or otherwise - and who, on a particular date, asks the question "
"(h) the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would - (i) exceed 4 metres in height (ii) have more than one storey, or (iii) have a width greater than half the width of the original dwellinghouse."
"173. Contents and effect of notice. (1) An enforcement notice shall state - (a) the matters which appear to the local planning authority to constitute the breach of planning control; (b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls. (2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are. (3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes. (4) Those purposes are - (a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or (b) remedying any injury to amenity which has been caused by the breach... (11) Where - (a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and (b) all the requirements of the notice have been complied with,then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities."
"174. Appeal against enforcement notice. (2) An appeal may be brought on any of the following grounds - (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 or, as the case may be, the condition or limitation concerned ought to be discharged; (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, or the activities required by the notice to cease, 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."
"177. Grant or modification of planning permission on appeals against enforcement notices. (1) 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."
"22. In Taylor & Sons (Farms) v Secretary of State for the Environment, Transport and the Regions[2001] EWCA Civ 1254 , it was said that appellants should contemplate the possibility that their primary contentions might fail, and if there was a fall-back position on which they intended to rely they should make this clear in their submissions. It was not reasonable to come to court and ask for the case to be remitted to the inspector so that he or she might ask for further submissions which could and should have been made in the first place if the landowner wished to advance them. 23. Taylor was considered in Tapecrown. Carnwath LJ, with whom the other members of the court agreed, observed at para 33 of his judgment that 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. The inspector's primary task, however, is to consider the proposals that have been put before him, and although he is free to suggest alternatives it is not his duty to search around for solutions. Carnwath LJ came back to this later in his judgment: "46. As I have said, I would not wish to lay down any general rules. I would accept that as a general proposition, given the limitations of the written representations procedure, an appellant would be well advised to put forward any possible fall-back position as part of his substantive case. It is not the duty of the inspector to make his case for him. On the other hand 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. In such circumstances fairness may require him to give notice to the parties to enable them to comment on it..." 24. The judgment of the court in Moore was given by Sullivan LJ. He referred to Taylor and Tapecrown as establishing the proposition that an appellant under ground (f) should state his "fall-back" position because the inspector's primary duty is to consider the proposals which have been put before him, and he is not under any duty to search around for solutions. He continued: "40. We readily accept that it is not the duty of an Inspector to make an appellant's case for him (see [46] of Tapecrown per Carnwath LJ, as he then was), but in the present case the appellant had made her case, albeit that she made it under ground (b) rather than ground (f), that the alleged use in breach of planning control, which the notice required her to cease, was too wide. As Carnwath LJ observed in Tapecrown 'the enforcement procedure is intended to be remedial rather than punitive' ([46]). We accept [counsel's] submission that the mere fact that this issue was raised under ground (b) rather than ground (f) is not fatal to this ground of appeal. If there was an 'obvious alternative which would overcome the planning difficulties, at less cost and disruption than total [cessation]' the inspector should have considered it: Tapecrown."
"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. (Despite the Inspector's conclusion that this particular flat was also substandard, he appears to have accepted that it could be part of the three flat scheme as shown on the Appellant's drawings, although they appear to show negligible change to it). 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. 34. For Mr Wills' submissions on ground (a) and the deemed planning permission to succeed without recourse to powers governing remedial steps under ground (f), the statutory power in s177(1)(a) has 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 s177(1)(a) is too specific and clear for such an interpretation."
"18. The agreed starting point in this appeal is, therefore, that the ground (a) appeal, the deemed application under subsection 177(5), and the power to grant permission under section 177(1) are of no assistance to the Respondent. The sole question is whether the Inspector erred in concluding that he did not have power to enable the implementation of the three flats scheme by allowing the appeal under ground (f), varying the steps required by the notice, and thereby enabling what remained after compliance with those requirements as varied to be treated as having been granted planning permission under section 73A by virtue of the operation of subsection 173(11)... 38. It is unnecessary to adopt a strained interpretation of subsection 173(11) in order to ensure that enforcement proceedings retain their remedial character. If, as in the present case, an alternative scheme is put forward which is not part of the matters stated in the enforcement notice as constituting a breach of planning control, but which the Inspector considers may well be acceptable in planning terms, he can follow the course which the Inspector adopted in the present case: allow the appeal under ground (g) and extend the period for compliance with the notice so that the planning merits of the alternative can be properly explored: see paragraph 7 (above). Local planning authorities usually issue enforcement notices as a last resort when persuasion and negotiation with the landowner has failed. It is open to a landowner who wishes to obtain planning permission for such an alternative scheme to apply for planning permission for that scheme at any time, whether before or after an enforcement notice has been issued. The local planning authority's power in section 70C to decline to determine applications for planning permission made after an enforcement notice has been issued applies only if granting the permission would involve granting permission "in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control." 39. I do not accept Mr Wills' submission that this approach to the ambit of ground (f) renders that ground of appeal otiose. In its earlier form, under the 1968 Act, ground (f) was clearly much narrower than ground (a): it was not concerned with the planning merits of the matters alleged to constitute a breach of planning control, a question of planning judgment, but with what was essentially a factual question – what steps were necessary to remedy that breach: see paragraph 20 (above). The inclusion of the second limb in ground (f) – that even if they do not remedy the breach, less onerous steps will suffice because they will remedy any injury to amenity caused by the breach - means that deciding an appeal under ground (f) may well involve an element of planning judgment, which is bound to overlap to a certain extent with the Inspector's judgment as to the wider planning merits under ground (a). That there is now a degree of overlap between the two grounds, (a) and (f), is recognised in the authorities relied upon by Mr. Wills: Tapecrown, Moore and Ahmed. It does not follow that ground (f) is otiose merely because there is now some overlap between the two grounds, in that injury to amenity is relevant under both grounds; nor does it follow that ground (f) is otiose because it cannot be used in conjunction with subsection 173(11) to secure for an alternative scheme a planning permission which is unobtainable under section 177(1)."