CA-2025-000342 - [2025] EWCA Civ 1442

Planning permission is required for “development” (s.57). In general, “development” is defined to mean either the carrying out of building, engineering, mining or other operations in, over or under land (“operational development”) or the making of a material change in the use of any buildings or land (s.55(1)).

Planning permission may be granted in a number of ways, including an express grant of permission by a local planning authority in the determination of an application to that authority or permitted development rights granted by a development order in the form of a statutory instrument (ss.58 to 61). The relevant order is the GPDO 2015.

Article 3(1) of the GPDO 2015 grants planning permission, subject to the provisions of the Order, for development described as “permitted development” in sched.2. However, Art.3(4) provides:

“Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part 3 or Part 13 of the Act otherwise than by this Order.”

The Class B right reads as follows:

“B. Development required by the conditions of a site licence for the time being in force under the 1960 Act.”

By s.171A(1) of the TCPA 1990 “the carrying out of development without the required planning permission” or a failure “to comply with any condition or limitation subject to which planning permission has been granted” constitutes “a breach of planning control”.

By s.172(1) where a local planning authority considers that a breach of planning control has occurred, and that it is expedient to do so, they may issue an enforcement notice. Such a notice must specify the breach of planning control alleged (s.173(1)) and inter alia the steps required to be taken to remedy the breach by restoring the land to its condition before the breach took place, or to remedy any injury to amenity caused by the breach (s.173(3) and (4)). An enforcement notice may, for example, require the removal of any works or the carrying out of any building or other operations (s.173(5)). The notice must specify the date on which it is to take effect and the period for compliance with the notice (s.173(8) and (9)).

Section 174 provides for an appeal against an enforcement notice to the Secretary of State. The grounds of appeal in s.174(2) include under sub-para.(c) that the matters referred to in the notice do not constitute a breach of planning control and under sub-para.(a) that planning permission should be granted for the matters alleged to constitute development without permission. Ground (a) is linked to the provisions in s.177 for the determination of a deemed application for planning permission for the matters stated in the notice to constitute a breach of planning control. The appellant’s appeal against the enforcement notice relating to the engineering operations involved both grounds (a) and (c).

Section 285(1) provides that the validity of an enforcement notice shall not, except by an appeal under Part VII of the TCPA 1990 (i.e. an appeal under s174) be questioned in any proceedings on any of the grounds on which such an appeal may be brought (i.e. the grounds in s 174(2)). Under s. 289(1) an appeal on a point of law may be made to the High Court against the determination of an appeal against an enforcement notice under Part VII, but only with the leave of that Court (s.289(6)).

Section 181 of the TCPA 1990 provides for an enforcement notice to have effect against subsequent development falling within its scope which is carried out after there has been compliance with the notice:

“181.— Enforcement notice to have effect against subsequent development.

(1)

Compliance with an enforcement notice, whether in respect of—

(a)

the completion, removal or alteration of any buildings or works;

(b)

the discontinuance of any use of land; or

(c)

any other requirements contained in the notice,

shall not discharge the notice.

(2)

Without prejudice to subsection (1), any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part III; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice.

(3)

Without prejudice to subsection (1), if any development is carried out on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice, the notice shall, notwithstanding that its terms are not apt for the purpose, be deemed to apply in relation to the buildings or works as reinstated or restored as it applied in relation to the buildings or works before they were removed or altered; and, subject to subsection (4), the provisions of section 178(1) and (2) shall apply accordingly.

(4)

Where, at any time after an enforcement notice takes effect—

(a)

any development is carried out on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with the notice; and

(b)

the local planning authority purpose, under section 178(1), to take any steps required by the enforcement notice for the removal or alteration of the buildings or works in consequence of the reinstatement or restoration,

the local planning authority shall, not less than 28 days before taking any such steps, serve on the owner and occupier of the land a notice of their intention to do so.

(5)

Where without planning permission a person carries out any development on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice—

(a)

he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

(b)

no person shall be liable under section 179(2) for failure to take any steps required to be taken by an enforcement notice by way of removal or alteration of what has been so reinstated or restored.”

But s.180 of the TCPA 1990 deals with the effect of the grant of a planning permission for development already carried out upon an existing enforcement notice:

“180.— Effect of planning permission, etc., on enforcement or breach of condition notice.

(1)

Where, after the service of—

(a)

a copy of an enforcement notice; or

(b)

a breach of condition notice,

planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as inconsistent with that permission.

(2)

Where after a breach of condition notice has been served any condition to which the notice relates is discharged, the notice shall cease to have effect so far as it requires any person to secure compliance with the condition in question.

(3)

The fact that an enforcement notice or breach of condition notice has wholly or partly ceased to have effect by virtue of this section shall not affect the liability of any person for an offence in respect of a previous failure to comply, or secure compliance, with the notice.” (emphasis added)

The regime dealing with tree preservation orders is set out in Chapter 1 of Part VIII of the TCPA 1990 and in the Town and Country Planning (Tree Preservation) (England) Regulations 2012 (SI 2012 No 605). By reg.13 of the Regulations no person may cut down, top, lop, uproot, or wilfully damage or destroy such a tree, or cause or permit any such activity, except with the written consent of the local planning authority (reg.13). Consent must be obtained beforehand. Regulation 14 contains a number of exceptions to that prohibition, one of which relates to work which is necessary to enable a person to implement a full or detailed (not an outline) planning permission.

By s 206(1) of TCPA 1990 if a tree is removed or destroyed in breach of a tree preservation order, it is the duty of the owner of the land to plant another tree of appropriate size and species at the same place as soon as he can reasonably can. Section 206(3) imposes a similar obligation on a landowner to replant trees unlawfully removed from woodland. If it appears to the LPA that s.206 has not been complied with, it may serve on the owner of the land a tree replacement notice under s.207, that is a notice requiring him to plant a tree or trees of such size and species as may be specified. In default, the LPA may under s.209 enter the land and carry out the works required by the notice at the expense of the then owner of the land.

Section 210 creates an offence for non-compliance with a TPO. Subsection (1) provides:

“If any person, in contravention of tree preservation regulations—

(a)

cuts down, uproots or wilfully destroys a tree, or

(b)

wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it,

(c)

causes or permits the carrying out of any of the activities in paragraph (a) or (b),

he shall be guilty of an offence.”

The offence is triable either way and is punishable in the Crown Court by an unlimited fine.