In this case, Mr Ioannou had been served with an enforcement notice by Enfield LBC in respect of the unlawful conversion of a single family dwelling-house into 5 self-contained flats. He appealed to the Secretary of State, and before the Inspector appointed to determine the appeal he sought to rely upon an alternative 3-flat scheme which he contended the Inspector could grant permission for under Grounds (a) or (f) of s.174(2) of the Town and Country Planning Act 1990. The Inspector held that he had no power to grant permission for the 3-flat scheme since it was a different development to that enforced against (as opposed to being part but not all of the development enforced against).
Mr Ioannou appealed to the High Court under s.289 of the 1990 Act. Ouseley J. allowed the appeal: see  J.P.L. 608. He held that:
- The Inspector’s powers under the Ground (a) appeal were confined by s.177 of the 1990 Act to the “whole or any part of” the development enforced against. The 3-flat scheme was not the whole or any part of the development enforced against but a different development. Therefore the Inspector was right to hold that he could not consider it under Ground (a).
- Under Ground (f), however, the Inspector could have altered the requirements of the enforcement notice so as to require the 5-flat scheme to be converted to the 3-flat scheme. The 3-flat scheme would then receive deemed planning permission under s.173(11) of the 1990 Act once the requirements of the notice were complied with. The only limit to the Inspector’s power to achieve this result was the Wheatcroft principle pursuant to which it is impermissible on a planning appeal to grant permission for something which was “substantially different” than that applied for / enforced against. The Inspector’s decision letter contained no assessment of whether the 3-flat scheme would be consistent with the Wheatcroft principle. Therefore he erred in law.
The Secretary of State appealed to the Court of Appeal against Ouseley J.’s decision on Ground (f). Following a 1 day hearing on 16 October 2014, on 31 October 2014 the Court allowed the appeal:  EWCA Civ 1432. Delivering the lead judgment, Sullivan LJ held:
- The clear terms of s.173(11) were that only unlawful development which could have been required to be undone at the time of the enforcement notice, but which whilst specified in the notice was not required to be undone, benefits from the deemed grant of planning permission. The alternative 3-flat scheme was not in existence at that time and therefore fell outside the scope of s.173(11).
- Mr Ioannou’s call for a purposive approach to the interpretation of s.173(11) could not defeat the clear words of the provision. In any event, the Secretary of State was correct that a purposive approach favoured the Inspector’s approach since it would mean that a deemed planning permission could be brought in circumstances where an express planning permission was prohibited by the terms of s.177(1) and in circumstances where there was no requirement to have regard to the development plan.
- Mr Ioannou’s reliance on case-law stating that an Inspector’s powers under Ground (f) were broad had to be read in the light of the issues in those cases and the terms of the legislation.
- Accordingly, the ground (f) appeal could not be relied upon to bring about the grant of deemed planning permission for an alternative development which was not in existence at the time of the enforcement notice. This did not deprive enforcement proceedings of their remedial character since it was open to an Inspector to extend the time for compliance with the enforcement notice under Ground (g) of s.174(2) so as to provide time for a fresh planning application to be made to the local planning authority for an alternative development which he considers may well be acceptable in planning terms.
Charles Banner appeared for the appellant, the Secretary of State for Communities and Local Government, instructed by the Treasury Solicitor.
Jonathan Wills appeared for the respondent, Mr Ioannou, instructed by Kingsley Smith Solicitors.