Breach of planning control – Can prospective breaches be enforced?

The London Borough of Tower Hamlets issued an enforcement notice on 20 January 2022 in respect of the first, second and third floors of a narrow four-storey mid-terrace property on Whitechapel Road, the notice was appealed on the grounds that the alleged breach had not taken place.

The Council stated that renovation works undertaken at the property had turned storage space into bedrooms with shower rooms and toilets and a windowless bedroom in the middle of the first floor.

The Council’s enforcement notice described the alleged breach of planning control as: “the material change of use of the first, second, and third floor of the premises from storage to a 6-room House in Multiple Occupation”. It required the recipient to “Cease the use of the property as self-contained flats”.

The enforcement notice anticipated the change of use – the Council believed the renovation works had been undertaken in preparation for occupation as an HMO – however, neither the Council nor the Appellant suggested that any residential occupation of any of the 3 upper floors of the property had begun. The works themselves were wholly internal and therefore did not require planning permission in this situation. A material change of use commences when the new use begins, not when the works facilitating the use are completed.

An enforcement notice can only be issued where it appears to the Council that there has been a breach of planning control not where they think there might be a breach of planning control in the future.

The Inspector referred to the case of R v Rochester-upon-Medway CC ex-parte Hobday [1990] JPL 17; [1990] JPL 923, where it was held that an enforcement notice issued on the basis of a prospective breach was a nullity, because the 1990 Act requires consideration of past or present, but not prospective, breaches of planning control. He stated this was the situation here and declared the enforcement a nullity, awarding costs against the Council.