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Enforcement Appeals – How Far can the Inspector Go?

A recent challenge in the High Court concerned the approach of an inspector to an Enforcement Notice where alternative proposals were put forward to remedy the planning breach. 

The case involved the erection of a new sunroom at the front of a restaurant in Worcestershire. 

The building was not built in compliance with the planning permission, in that it had a different number of glazed panels in the front elevation; the upper section of the front elevation was glazed, when on the approved plans it was not; and the roof constructed was sloping rather than flat, being higher than the approved details and involving a projecting canopy with support columns. 

The restaurant owner sought retrospective permission for the sunroom as built and this was duly refused by the Council. 

As a consequence, the Council issued an Enforcement Notice requiring the removal of the unauthorised development within 3 months of the date of the notice taking effect.

The restaurant owners appealed to the Secretary of State, citing grounds that planning permission ought to be granted for the development and offered four alternative schemes as a way of resolving the planning harm.  The Inspector rejected the appeal on the basis that the alternative proposals put forward were outside his powers to grant planning permission. 

The Court examined the situation and decided that the Inspector has a discretion not to take such a narrow view that he must consider the Enforcement Notice and the issues contained in there, but can consider the planning merits of the alternative options put forward by the appellants. 

There is decided case law to that if, on consideration of the submissions and in light of the site, it appears to an inspector that there is an obvious alternative which would overcome the planning difficulties at less cost and disruption and total removal, he should feel free to consider it.  In terms of the consideration of an alternative development, he has to exercise his judgment to determine whether the planning permission that may be granted for the alternative development would be in relation to the whole or part of the sunroom that had been erected in breach of planning control.

If it could be said to be an alternative development to the sunroom, the Inspector then has to exercise his further planning judgment to consider whether (after having regard to the applicable development plan and all other material considerations) permission should be granted for the proposed alternative development. 

This case decided that the Inspector did have a wider discretion, if it had applied those alternatives. 

Perhaps the most interesting point of this case is that, if there is an Enforcement Notice and rather than the total removal of the offending development (as required by the notice), there is the possibility of asking the Inspector to exercise his/her discretion to consider a variation to the requirements, so long as the development is a solution to the issue and that the alternative proposal complies with the Development Plan policies and all other material considerations. 

For more information on the article above please contact Gareth Pinwell.

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