Deemed planning permission survives owner’s subsequent offence for non-compliance with enforcement notice

In an unusual planning case, spanning many years, the owner of a building in Kent has emerged victorious despite an admitted criminal offence of failing to comply with the requirements of an enforcement notice.

The story began in 2006, when planning permission was granted for a triple carport and stable with first floor storage.  A building was erected, but in the wrong place.  Moreover, it was fitted out and used as a dwellinghouse.  In 2009, the local planning authority served an enforcement notice (“EN1”) requiring the dwellinghouse use to cease.  However, crucially, it did not require the building to be demolished.  The owner appealed, but his appeal was dismissed.  An Inspector varied the requirements of EN1, such that the kitchen and beds had to be removed, but, again, no requirement to demolish the building was imposed.  The deadline date for compliance was 4 July 2010.  The owner’s case was that he did comply before that date, such that planning permission for the erection of the building was, upon compliance, automatically deemed to be granted by a combination of sections 73A and 173(11) of the Town and Country Planning Act 1990.

For various personal reasons, set out in the Appeal Decision, there was subsequent non-compliance with the requirements of EN1 and the owner admitted a criminal offence to that effect.  The local planning authority also served another enforcement notice, EN2, referable to additional works to the building.  The owner’s case was that neither the admitted offence nor EN2 altered the fact that the building the subject of EN1 automatically gained planning permission at the moment of full compliance with the requirements of EN1.  He applied for a certificate of lawfulness to that effect, which the local planning authority refused.  The owner appealed.

In an Appeal Decision dated 26 April 2023, the Secretary of State’s appointed Inspector has allowed the owner’s appeal, issued the certificate of lawfulness sought and awarded the owner his costs in full.  The Inspector accepted the owner’s evidence that there was full compliance with EN1 before 4 July 2010, found that his case was corroborated by a 2011 officer report (which the authority did not provide to its own external witness) and held that the subsequent non-compliance with EN1 was immaterial (as was EN2).  The Inspector also rejected the authority’s claims concerning the owner’s future intention after the 2010 compliance, both factually and legally.

The case is a salutary lesson in the drafting of enforcement notices, document disclosure, the use of external witnesses in such cases and section 173(11).

Stephen Whale represented the owner throughout the application and appeal processes, and at the public inquiry.  He is the author of the enforcement commentary in the Planning Encyclopedia.

The Appeal Decision may be accessed here and the Costs Decision may be accessed here.

Download your shortlist

Download All Download icon