This recent High Court case concerned an appeal against a planning enforcement notice. The decision reinforced the principle that the primary purpose of the planning enforcement regime is to remedy breaches of planning control rather than punish the perpetrator. The planning enforcement notice required the demolition of a building that was not constructed in accordance with the approved scheme for the building for which planning permission had been granted.
The appellant’s appeal included an argument under ss.174(f) and 176(1) of the Town and Country Planning Act 1990 that the notice exceeded what was necessary to remedy the breach and should instead require the development to be modified to comply with the original planning permission. However, the inspector rejected this argument on the basis that the original permission had lapsed since the approved scheme had not been implemented within five years. There was therefore no extant planning permission upon which the building could rely.
The enforcement notice could nonetheless have been varied under section 176(1) if retrospective permission were granted for the approved scheme under section 177(1). However, the appellant failed to articulate this fall-back position in his submissions and so the inspector did not consider it.
The judge held that “an Inspector is not to be criticised for failing to address his mind to a substantive submission that was never put to him, unless from the submissions that were advanced, and from any site inspection, that option would have presented itself to any reasonable Inspector as an “obvious alternative” course”. The grant of retrospective planning permission under section 177(1) was held to be an “obvious alternative” course, which the inspector ought to have considered.