The Planning Court has recently considered the scope and discretion of local planning authorities to make orders under section 102 of the Town and Country Planning Act 1990 requiring the discontinuance, alteration and/or removal of lawful planning uses and development works.
Section 102 of the Town and Country Planning Act (“1990 Act”) gives power to local planning authorities to make orders:
(a) requiring any use of land to be discontinued or imposing conditions on the continuance of the use of land; or
(b) requiring any buildings or works to be altered or removed;
provided it is expedient to do so having regard to the development plan and to any other material considerations in the interests of the proper planning of their area (including the interests of amenity) (“S102 Order”).
A S102 Order made by a local planning authority will not take effect unless it is confirmed by the Secretary of State under section 103 of the 1990 Act, either without modification or subject to such modifications as considered expedient. Owners and interested parties will have an opportunity to object to a S102 Order at this stage and, by example, an inquiry may be held before a planning inspector.
Importantly, local planning authorities can be liable to pay compensation to affected parties of a S102 Order (once confirmed) under section 115 of the 1990 Act.
In Hemms, R (On the Application Of) v Bath And North East Somerset Council & Anor  EWHC 2721 (Admin) (14 October 2020) the claimant brought a judicial review of the council’s decision not to make a S102 Order for the removal of her neighbour’s fence. The claimant was the owner of Paper Mill Cottage which is situated in the green belt and within the Cotswolds Area of Outstanding Natural Beauty. The property’s eastern boundary abuts a parcel of farmland and in 2015 the manager of the farmland without planning permission erected a fence over 2 metres in height along the boundary which runs within 300mm from the claimant’s kitchen window.
In May 2016 the council issued an enforcement notice in relation to the unauthorised fence. On appeal the planning inspector first considered ground (c) of section 174 of the 1990 Act that there had not been a breach of planning control because the fence amounted to permitted development. The inspector held that this ground failed and upheld the notice but varied it so that it no longer required removal of the fence but rather – in recognition of permitted development rights – that it be reduced to a height of no more than 2 metres above ground level.
The inspector then considered ground (a) under section 174 that planning permission ought to be granted. Importantly to the present case, the inspector concluded that the fence was not in keeping with traditional means of enclosure around a field in the Cotswolds and that although it might be expected to weather that did not lead him to conclude that the structure was an appropriate form of development in what was an area of outstanding natural beauty. He therefore refused ground (a).
The fence was then reduced in height to 2 metres and was therefore lawful development within permitted development rights.
However, in 2018 and again in late 2019 and 2020 the claimant applied to the council for it to make a S102 Order for the removal of the fence and offered to indemnify the council against costs and compensation up to the sum of £5,000. In considering whether it was expedient to make the order, the officer’s report found the following:
Officers disagreed with the inspector’s conclusion in respect of the landscape impact of the fence. The ‘principal reason’ was the weathering of the fence in the years since it was erected, and that there was an element of regrowth in its vicinity;
Officers weighed in favour of a S102 Order that the fence was clearly contrary to the development plan by virtue of the substantial harm to the living conditions of the occupants of Paper Mill cottage in respect of its kitchen;
Officers weighed against the issuing of a S102 Order (i) the owner of the field had permitted development rights; (ii) the need for an Article 4 Direction removing permitted development rights for the S102 Order to have a meaningful effect, including the need for strong justification in agricultural cases; and (iii) the compensation payable, which would be payable, coupled with the material amount of officer time which would be better deployed in the public interest elsewhere; and
Officers found that if the failure to make a S102 Order constituted an interference with the claimant’s Article 8 ECHR rights, all of the factors mentioned provided reasons why the interference was justified and proportionate. The Report concluded that given the limited scale and magnitude of the harm set out above, it was considered grossly disproportionate and indeed unreasonable for the council to intervene and issue a S102 Order requiring the removal or alteration of a lawful fence, when weighed against the disadvantages of doing so as set out above. The claimant judicially reviewed this decision.
Decision of the Court
The Court dismissed the claim and found that the council had not ignored any material considerations and was entitled within their discretion as decision maker to determine not to make a S102 Order.
In particular, Sir Ross Cranston sitting as a Deputy High Court Judge made the following important points:
The council had to consider whether it was expedient in the interests of the proper planning of their area, including the interests of amenity, to make the order. Expediency encompasses a wide discretion. It is to be distinguished from the issue whether planning permission should be granted;
The inspector addressed the material considerations and their weight from the planning permission perspective, not whether or not in light of the unacceptable impact it was expedient to make a S102 Order. That was a different issue and, as such, the inspector’s reasoning in this regard while a material consideration by no means dictated the outcome of the section 102 decision for the council;
A reduction in light to one room which is unacceptable in planning policy terms, in circumstances where the room still benefits from another window or other windows, is not serious enough to fall within the scope of Article 8;
There is no requirement on the council to quantify the likely compensation payable in the event of a S102 Order being made, and that in any event it would impose a disproportionate burden on the council to do so; and
The council was correct to weigh, as a lawful material consideration against the making of the S102 Order, the fact that the issue would absorb officer time which would be better deployed in the public interest elsewhere.
Lesson: Local planning authorities have the power to make S102 Orders requiring the discontinuance and/or removal of lawfully permitted planning use and development. However, there is wide discretion in the making of S102 Orders including relevant material consideration of their cost and officer time involved. Therefore, such orders will likely remain a rarity as opposed to a common option of development control for local planning authorities.
Should you have any questions or require any assistance on any issues mentioned in this article please do not hesitate to contact the Planning and Environment Team at Hewitsons LLP.