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Deemed permission

Under-enforcement


Maldon District Council v Hammond
[2004] EWCA Civ 1073

Facts

Mr Hammond lived on a site where he stored and repaired damaged motor cars. He had also built a bungalow on the site without planning permission and placed a mobile home on it. There was a long history of enforcement action by the council, founded on enforcement notices requiring the demolition of the bungalow, a workshop and hard standing and the removal of the mobile home. Those notices did not refer to the use of the land for vehicle storage and repair. The issue for the Court of Appeal was whether the effect of section 173(11) of the 1990 Act was to grant deemed planning permission for the vehicle and storage repair use, once there had been compliance with the enforcement notice.

N.B. Section 173(11) deals with under-enforcement and provides that where an enforcement notice could have required any buildings or works to be removed or any activity to cease but does not do so then, so far as the notice does not require, planning permission shall be treated as having been granted for the development in question.

Held

Section 173(11) did not operate so as to grant planning permission for the vehicle storage and repair use. It applied only to uses of the land that were alleged by the enforcement notice itself to be in breach of planning control. If a use was not alleged to be in breach, the notice could not require that use to cease, and deemed planning permission could not arise under section 173(11).

Comment

It is open to a local planning authority to elect to under-enforce, i.e. to choose not to require steps to be taken to remedy the whole of the alleged breach of planning control. In such circumstances, the effect of section 173(1) is to validate the residuary breaches once the notice has been complied with. It is necessary, therefore, to focus on the description of the breach.

In the present case, the council had not alleged that the vehicle storage and repair use was in breach of planning control since, from the councils perspective, it operated at a level that rendered it merely ancillary to the use of the bungalow. Once the bungalow was demolished, that use would come to an end.

What the decision does do is to make it clear that a local planning authority is not bound to scour a planning unit for potential breaches of planning control for fear that planning permission for any such breaches might otherwise be deemed to be granted.



Fidler v First Secretary of State
[2004] EWCA (Civ) 1295

This is another case on s173(11). The landowner owned land and buildings originally occupied for the purposes of agriculture, but which were subsequently also used for a variety of non-agricultural purposes. There was a history of attempted enforcement action by the local planning authority. In 2002, the authority issued a further enforcement notice alleging a material change in the use of the land. This was appealed to the Secretary of State, unsuccessfully, and the appeal decision was challenged in the High Court by the landowner.

By the time that the proceedings reached the Court of Appeal, the principal issues for the court were whether (a) the planning inspector had been entitled to find that there had been a material change of use, and (b) the further enforcement notice amounted to under-enforcement, with the result that planning permission was deemed to have been granted for the remaining uses on the site by virtue of s173(11).

Held

The planning inspector was entitled to make the finding that he did, but rejected the landowners contention in respect of the meaning of section 173(11). Earlier decisions made it clear that section 173(11) applies only to uses that are alleged by the enforcement notice itself to be in breach of planning control. If a use is not alleged to be in breach of planning control, the notice cannot require the use to cease, and deemed planning permission cannot arise out of the failure of the notice to require the cessation of that use.

Comment

Put another way, it is essential to focus on the description in the enforcement notice of the alleged breach of planning control. This approach should ensure that a local planning authority does not give deemed planning permission by an oversight. There will be no need to scour the site beforehand for other potential breaches of planning control

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