R (Neophytou and another) v Enfield Council [2022] EWHC 521 (Admin)

Key point: Neophytou v Enfield confirms that a council’s choice whether to take planning enforcement action is a discretionary planning judgment. A court can intervene where the decision is legally flawed, but judicial review is not an opportunity to re-decide disputed measurements or substitute the court’s view of what enforcement would achieve.

The Neophytou v Enfield judgment also illustrates an important limit to a factual-error challenge: the alleged fact must be established, objectively verifiable and material to the decision. A disagreement between neighbours about the scale of works is not enough by itself.

Case: R (Neophytou and another) v Enfield Council [2022] EWHC 521 (Admin)
Court: High Court, Administrative Court
Judge: Mr C M G Ockelton, Vice-President of the Upper Tribunal
Judgment: 11 March 2022 | Case number: CO/92/2021 | Outcome: claim dismissed

What happened in Neophytou v Enfield?

The dispute concerned works to the rear garden of a neighbouring home in Hadley Way, Enfield. The gardens in the area slope steeply, and terraces are common. The interested parties altered an existing terrace and carried out other garden works. Their neighbours, Christopher and Rena Neophytou, believed that the terrace had been extended and raised substantially, causing overlooking and loss of privacy.

Enfield investigated the works. Retrospective planning applications were refused, and the Council initially warned that it might serve an enforcement notice if remedial work was not completed. After further work and review of the evidence, the Council decided that it would take no further enforcement action for the development as it then stood.

In Neophytou v Enfield, the neighbours challenged that decision by judicial review. They argued, in substance, that the Council had failed to consider the extent of an alleged terrace extension, had misunderstood how much higher the new terrace was than the old one, and had applied permitted development rights incorrectly to the raising of ground levels.

The legal framework for planning enforcement

Section 172 of the Town and Country Planning Act 1990 gives a local planning authority power to issue an enforcement notice where it appears that there has been a breach of planning control and it is expedient to do so, having regard to the development plan and other material considerations. The power is discretionary. A breach does not automatically require a notice.

The decision remains reviewable on ordinary public law grounds. A court may intervene if the authority applies the wrong legal test, ignores a material consideration, takes account of an irrelevant matter, acts irrationally, follows an unfair process or makes a material error of fact. But the court does not take over the authority’s role in deciding whether enforcement is expedient.

Why the factual-error challenge failed

The claimants’ measurements and account of the earlier terrace were disputed. The court considered the evidence, including photographs and the material available to the Council, but the judicial review question was not simply which neighbour’s measurements the judge preferred. The question was whether the Council’s decision was unlawful.

Applying the established approach to factual error, a claimant must show a mistake about an existing fact or the availability of evidence; that the fact was established and objectively verifiable; that the claimant was not responsible for the mistake; and that the mistake played a material part in the decision. The court was not satisfied that the claimed dimensions were established, uncontentious facts. The dispute could not be converted into a reviewable legal error merely by presenting one side’s measurements as certain.

The comparison also had to be made with the terrace that existed before the works, rather than treating the whole history of the garden as if no terrace had been there. The court did not need to make a definitive finding on every alleged breach in order to decide whether Enfield had acted unlawfully in declining further action.

The permitted development point and materiality

The Council’s spreadsheet recorded a general rule that raising ground levels by up to 30 centimetres was permitted development. The judge found that the GPDO contains no general permission to raise ground levels. A raised platform of no more than 30 centimetres may, however, be permitted by Class E, subject to the Order’s terms. The identified legal error did not automatically invalidate the decision. The question was whether it materially affected the Council’s conclusion that enforcement was not expedient.

On the evidence, the Council had considered the changes made, the neighbours’ amenity concerns, the prospect of remedial work, the likely outcome of an enforcement appeal and the risk of an adverse costs award. Those matters provided a lawful basis for its decision. The court also considered whether parts of the patio works could fall within Class E’s rules for raised platforms, including paragraph E.1(h), assessed against the original ground level.

In other words, identifying an error in one part of an enforcement assessment does not end the analysis. The court asks whether that error mattered to the decision as a whole.

What Neophytou v Enfield means in practice

Neophytou v Enfield is useful where a neighbour, landowner or authority is considering a challenge to a decision not to enforce. It reinforces four practical points:

• Enforcement is a discretionary power, and the authority must assess expediency rather than treating every breach as requiring formal action
• Remedial works can be relevant to whether further enforcement is necessary or proportionate
• An authority may consider the likely prospects and consequences of an enforcement appeal when deciding whether a notice is expedient
• A factual-error challenge needs clear evidence of an established fact and a material connection between the mistake and the decision

The decision does not give councils a free pass. A refusal to enforce can still be challenged where the authority misunderstands the law, fails to consider an important matter or reaches a conclusion that cannot reasonably be supported by the evidence. But a judicial review claim needs to identify a public law flaw, not simply invite the court to prefer a different view of contested facts or planning merits.

For the wider framework, see our planning enforcement guidance and the Planning Enforcement case-law collection.

Judgment and source

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