[2025] EWHC 2646 (Admin)

The appeal of South Darenth against the Enforcement Notice was on the grounds set out in s. 174(2)(a), (b), (c), (d), (f) and (g) of the TCPA 1990. Section 174(1) provides that a person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him and section 174(2)(c) provides that an appeal may be brought on the basis that “those matters [stated in an enforcement action] (if they occurred) do not constitute a breach of planning”. South Darenth alleged, pursuant to ground (c), that the erection of retaining walls and fencing of up to 2m in height in Fairfield constituted permitted development under Class A of Part 2 of Sch. 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) and therefore did not constitute a breach of planning control and was lawful.

This particular issue was dealt with by the Secretary of State’s Inspector in paragraphs 41 to 43 of the Decision and at paragraph 42 of the Decision, he stated: “Article 3(5) of the GPDO states that deemed permission granted by Schedule 2 does not apply if, in the case of permission granted in connection with an existing use, that use is unlawful. On that basis and as I have concluded the use is unlawful, the walls and fences cannot benefit from the permitted development rights conferred by the GPDO.” In paragraph 46 the Inspector said as follows: “To the extent that the works to the building may have been permitted development I note the effect of Article 3(5) of the GPDO as set out above in relation to the walls and fences. As a result, the works cannot benefit from the permitted development rights conferred by the GPDO”. The Enforcement Notice was upheld by the Inspector, subject to modification.