There was no dispute that an enforcement notice had been issued after a planning application had been made but the question for the Court was whether that application was a “related application” in the context of s. 174(2B).

The enforcement notice was directed at the erection of a first floor rear extension and installation of a roof dormer in the context of an existing dwellinghouse. The previous planning application had been part retrospective to authorise a first floor rear extension and installation of a roof dormer to create a flat; and part prospective for the change of use of the ground floor of the building to create a shop.

PINS had judged that the two were not “related” because, in refusing planning permission, the Council had considered the acceptability of the operational development in terms of facilitating a material change of use. The SoS argued that there were material differences in the planning considerations, namely fallback and also considerations under the ground (f) appeal and thus it would be unjust not to allow the ground (a) appeal to be determined.

However, the Court agreed with the Council that the natural and ordinary meaning of the section was that, given the planning application encompassed the building operations in the enforcement notice, the two were “related” (see J48 – 50). He dismissed the contention that there must be “coincidence” between the matters specified in the enforcement notice and the planning application and that it was a matter of judgement for PINS as to whether there is any material difference between the development in the planning application and enforcement notice (J61).

The crux of the ratio of the judgment is this (at J53): “The operation of section 174(2A) does not depend on whether the reasons a person might be able to deploy in such an appeal are the same as those that he or she could employ in the enforcement notice appeal brought on ground (a). The test is merely whether the grant of the application for planning permission for the development, for whatever reason, would involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control.”

Picking up the reference to ‘bites of the cherry’ in earlier authorities on s. 70C (including Wingrove v. Stratford on Avon [2015] EWHC 287 and Banghard v. Bedford BC [2017] EWHC 2391 (Admin)), the Judge stated: “To use the analogy of the cherry, that was [the Appellant’s] bite of that fruit. The cherry does not change merely because her arguments might be different in an enforcement notice appeal” (at J56).

The judgment is due to be reported in the law reports. It is currently on Westlaw and other electronic sources. 

Annabel Graham Paul successfully acted for Manchester City Council (and also previously successfully acted in Wingrove and Banghard). Charles Streeten acted for the Secretary of State.