Inspector quashes ‘ambiguous’ enforcement by East Cambs Council

A Government planning inspector decided an enforcement notice issued by East Cambridgeshire District Council was so riddled with ambiguity, she had no option other than to throw it out.

“The lack of clarity is such that I am unable to correct the notice without the risk of causing injustice,” was how Ms S Watson of the Planning Inspectorate summarised her findings.

“Since the notice is found to be a nullity no further action will be taken in connection with this appeal.

“In the light of this finding, the local planning authority should consider removing any record of this null notice from the register kept under s188 of the Act.”

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The enforcement order had been issued in January 2022 against Cambridgeshire farmer and businessman Ross Taylor alleging breaches of planning at Mount Pleasant Farm, Main Street, Pymoor, near Ely.

If the enforcement had been upheld, Mr Taylor would have been forced to remove a raised patio, jacuzzi pool, sauna, and ornamental planting.

He had also been told to remove – within six months – gym equipment, a pool enclosure and “any domestic items/paraphernalia”.

Ms Watson outlined the council’s case before tearing it apart.

East Cambs Council claimed Mr Taylor had, without permission, made a “material change of use” from agricultural to a mixed use of leisure and recreational “and use for residential purposes”.

Ms Watson began by pointing that the allegation in the enforcement notice is wrong as it alleges a mixed use, (leisure/recreational/residential).

‘No evidence from the council’

“A mixed use is where there is more than one primary use but, in this case, there is no evidence from the council that there may be more than one primary use,” she said.

“The evidence in the council’s statement alleges that the building and land is being used for purposes incidental to 1 Mount Pleasant Cottages. There is no evidence of a leisure/recreational use taking place that is unrelated to the dwelling.

“I could correct the allegation, but this is not the only problem with the notice.”

Ms Watson then turned to the requirements of the enforcement notice and said it should have referred to the cessation of a specific alleged unauthorised use e.g., as a garden, etc.

“It should not require the cessation of the use for ‘non-agricultural purposes’,” she said.

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“This is because, you cannot prevent a use that would not constitute development.

“In this respect, the council exceeds the purposes of remedying the breach of planning control.”

Ms Watson added: “Furthermore, the enforcement notice requires any items associated with the unauthorised use to be removed, both on the land and in the building.

“For the alleged unauthorised use of the building, only the gym equipment is specifically required to be removed in step.

Unclear if kitchen should be removed

“This leaves in doubt what else has to be removed. For example, it is unclear as to whether the kitchen would be required to be removed as the notice does not specifically require its removal.”

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She said there was a similar problem in respect of the land.

“Whilst I appreciate that features on a site can change, neither party has drawn my attention to any changes that have taken place since the notice was issued,” she said.

Ms Watson outlined features she had seen on her visit to the property and compared them to the enforcement notice allegations and found discrepancies.

“Therefore, there is doubt about what needs to be removed,” she concluded.

Quoting from case law, she said “an enforcement notice must tell the recipient fairly what he has done wrong and what he must do to remedy it.

“In this instance, the ambiguity is such that the notice does not adequately specify what must be done to remedy the breach of planning control.”

“The lack of clarity is such that I am unable to correct the notice without the risk of causing injustice.”

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Ms Watson said she had powers of correction “so long as there would be no injustice to either the appellant or the local planning authority”.

But she then pointed out other defects in the enforcement notice such as “the requirement of ceasing ‘non-agricultural purposes’ exceeds what is necessary to remedy the breach and the requirements in respect of what exactly is to be removed is unclear.

“That being the case, I do not see how I could correct the notice without causing injustice to the parties.

“For these reasons I conclude that the notice is a nullity.”

SECOND ENFORCEMENT

In a separate ruling, Ms Watson also threw out an enforcement notice by East Cambridgeshire District Council on a 1 Mount Pleasant Cottages, Main Street, Pymoor.

“The appeal is allowed, the enforcement notice is quashed, and planning permission is granted,” she ruled.

Her decision followed enforcement action against Mr Taylor for a wall with pillars and railings, and gate at the house.

The enforcement notice was issued in November 2021 and alleged Mr Taylor had carried out the work without planning permission.

The council wanted him to remove the wall, pillars, railings, and gate from the front boundary of the house or reduce all parts of the wall, railings, pillars, and gates to a height of no more than 1m above ground level.

In part of her ruling, she writes that “overall, the structure is in keeping with the design of the house and as most of it is visually permeable, I do not find it to be dominant or visually intrusive within the street-scene.

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“I therefore conclude that the development is not harmful to the character and appearance of the countryside