In Miaris v SSCLG  EWHC 1564, handed down today, the High Court has answered this important question of law: such an appeal cannot be entertained where the planning objections which the "lesser steps" address are not limited to any injury to amenity.
Miaris concerned a restaurant in Bath against which an enforcement notice was issued alleging a breach of planning control arising from a material change of use from a restaurant to a mixed use of restaurant, drinking establishment and night club. The notice required three things to stop: the use of the restaurant as a drinking establishment; the use as a nightclub, and allowing DJs to perform at the restaurant. The appellant accepted that the nightclub use should cease, but appealed under ground (f) only, arguing that the other two requirements were excessive. In particular, the appellant argued that the number of customers who entered the premises at any one time but did not eat could be limited in order that the restaurant use would remain the primary use.
In the absence of a ground (a) appeal, the inspector refused to consider the general planning considerations advanced by the appellant in support of the ground (f) appeal, relying on the Court of Appeal's decision in Wyatt Brothers (Oxford) Ltd v SSE  EWCA Civ 1560. This was challenged as an error of law under section 289 Town and Country Planning Act 1990.
John Howell QC, sitting as a Deputy High Court Judge, dismissed the appeal. He considered a number of recent decisions – including Tapecrown; Ioanniou; Moore and Ahmed, and held that the Secretary of State's discretion to consider alternative requirements to those specified in the notice was not unlimited – it depends on the matters constituting the breach, the purpose of the steps specified in the notice, the grounds on which the appeal is made and the alternative in question. Where a ground (f) appeal is made in the absence of a ground (a) appeal, the Deputy Judge held that it can be entertained if the steps concerned relate solely to remedying injury to amenity.
Estelle Dehon appeared for the Secretary of State for Communities and Local Government.