Appealed Enforcement Notices and Lawful Development Certificates

28 Jul 2022

Planning and Environment

A lawful development certificate may only be granted under s.191 Town and Country Planning Act 1990 if the use or development is “lawful”.

To be “lawful”, no enforcement action may be taken in respect of the development or use, and it must not contravene the terms of an enforcement notice then in force.

Section 175(4) of the 1990 Act provides that where an enforcement notice is appealed, it is of no effect pending the outcome of the appeal.

In Brent LBC v Secretary of State for Housing, Communities and Local Government [2022] EWHC 1875 (Admin), the High Court had to consider an inspector’s decision to allow an appeal against a refusal to grant a lawful development certificate. The inspector had reasoned that because the enforcement notice which concerned the use was at appeal, there was no preclusion to granting the certificate.

 However, Neil Cameron QC (sitting as a Deputy High Court Judge) found that the inspector did not consider the first limb of section 191(2), in that he did not consider whether enforcement action “may then be taken” as result of the provisions of section 171B(4) of the TCPA 1990. The Council had purported to take enforcement action in respect of the breach by issuing the Enforcement Notice on the 24th July 2017, and at the time that the inspector made his decision on the CLEUD Appeal the four-year period running from that date had not expired. As a consequence, the provisions of section 171B(2) did not prevent the Council from taking further enforcement action. Therefore, at the time that the CLEUD Application was made, this was not a case where “no enforcement action may then be taken” (as referred to in section 191(2)(a) TCPA 1990).

A copy of the judgment can be found here.

Dr Ashley Bowes acted for the successful Claimant (instructed by Prospect Law Ltd).