QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ZZZ INCORPORATED||(CLAIMANT)|
|SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M GIBBON appeared on behalf of the DEFENDANT
Friday, 11th April 2003
Crown Copyright ©
"3. The Breach of Planning Control Alleged.
Without Planning Permission:
The unauthorised change of use of a house in multiple occupation to 1 one-bedroom self-contained flat, and 8 self-contained studio flats".
"4. Reasons For Issuing This Notice.
a) It appears to the Council that the above breach of planning control has occurred within the last 4 years.
B) The unauthorised development results in the loss of non-self-contained bedsitting accommodation with shared facilities (affordable accommodation), contrary to Policy HG17 of the London Borough of Camden Unitary Development Plan, which seeks to retain such accommodation in support of its aims to provide for a full range of housing types, including affordable housing to meet the needs of the population.
The Council do not consider that planning permission should be given because planning conditions could not overcome these problems.
5. What You Are Required To Do.
1) The use of the whole property as 1 one-bedroomed self-contained flat and 8 self-contained studio flats shall permanently cease.
2) The whole property shall be permanently rearranged to provide non-self-contained bedsitting accommodation, with shared facilities.
You are to comply with the above requirements within 6 months of this notice taking effect".
"(b) That the breach of control alleged in the enforcement notice has not occurred as a matter of fact ...
The property was never a house in multi occupation. The use prior to its conversion was as five self-contained units pursuant to appeal
"(f) The steps required to comply with the requirements of the notice are excessive, and lesser steps would overcome the objections ... The Council need only request the return of the building into five flats in the event the defective notice is upheld".
"5. Turning to the issue of whether the notice is correct to describe the previous use of the property as a house in multiple occupation, I acknowledge that no permission has ever been granted for such a use. However, the evidence that was presented at the 1988 appeal clearly refers to the previous use of the premises as being a house in multiple occupation. It would appear that the property was still being used primarily for this purpose when the Council visited it in 1993. There is no indication that this changed between then and when the appellant commenced the works to divide the property into 9 self-contained units in 1997. Indeed the appellant's builder appears to have confirmed to the Council that the prior use was as a house in multiple occupation.
6. I appreciate that the evidence from electoral registers shows different numbers of people occupying the property at various times with only one person for instance listed in 1989. However, houses in multiple occupation often have a very high turnover of tenants. As such I consider that the evidence of the electoral register as to the number of people occupying such a property at any given time is unlikely to be very reliable. It is even less predictive, in my view, of the manner in which the property was occupied. I am not satisfied therefore that this evidence is sufficient to establish that the house was not in multiple occupation for a period of at least 10 years prior to the change of use occurring.
7. I accept that firm evidence of multiple occupation before 1988 is less clear. However, there is nothing to contradict the Council's assertion that the property was used for this purpose for some time prior to that date. While the property appears to have been vacant at certain times during the relevant period, there is little to indicate the length of any vacancy. There is nothing to suggest that any gap in occupation was of sufficient length to have amounted to a material break in the use that would have prevented the Council from taking enforcement action. There is certainly no indication that the house was put to any other use during these gaps. Consequently, I am not satisfied that there is sufficient evidence to conclude that the previous lawful use of the dwelling was not as a house in multiple occupation. I find therefore that it is appropriate for the notice to refer to this use in the description of the breach.
8. Even if I had concluded otherwise, I am not satisfied that this would have warranted allowing the appeal under ground (b). There is no doubt that a change of the use of the premises to 9 self-contained units has occurred judging from the evidence and what I saw during my site visit. This use does not have the benefit of planning permission. While the previous use of a site is often quoted in the description of the breach, there is no legal obligation for this to be done. It seems to me therefore that had I found that there was genuine doubt as to the previous lawful use in this case it would have been open to me to merely delete the reference to the preceding use. In my view the notice would still be sufficiently clear in its amended form to enable the appellant to know what they had done wrong. In my view such a correction would not have caused any injustice as the matter was fully discussed as the Inquiry.
9. However, for the reasons I have already given I see no need to make such a correction".
"15. I note the suggestion that the requirements of the notice do not make sufficiently clear what is required, particularly in respect of the rearrangement of the property, but I do not accept this. In my view the requirement to rearrange the property so as to provide non-self-contained bedsitting accommodation with shared facilities is entirely comprehensible. I accept that the notice does not specify exactly how this is to be achieved. However, I do not consider that this makes the notice unduly imprecise. Indeed I consider that it leaves the appellant a commendable degree of flexibility as to how to rearrange the property so as to provide the non-self-contained accommodation and shared facilities. Accordingly the ground (f) appeal also does not succeed".
"I find that there is insufficient evidence to conclude that the notice is incorrect in stating that the previous lawful use of the premises was as a house in multiple occupation. The appeal under ground (b) therefore does not succeed, subject to a minor amendment to the description of the breach to remove the reference to the number of bedsitting rooms that previously existed".
"I do not consider that the requirements of the notice are either excessive or imprecise. The appeal under ground (f) therefore does not succeed either".
"In upholding the requirement of the enforcement notice to 'permanently rearrange' the appeal property to provide 'non-self-contained bedsitting accommodation with shared facilities' the Inspector acted unreasonably in that:
(1) he erred in holding that the steps required by the notice to be taken were stated with sufficient clarity: in fact they did not inform the owner what actually had to be done;
(2) he was not entitled on the evidence to conclude that the previous lawful use of the appeal property was without doubt as a house in multiple occupation;
(3) he unfairly required the rearrangement of the appeal property to provide non-self-contained bedsitting accommodation with shared facilities without first satisfying himself that that was actually its lawful use;
he was not entitled to rely on the negative finding that he was
'not satisfied that there is sufficient evidence to conclude that the previous lawful use of the dwelling was not as a house in multiple occupation';
(4) in the premises the claimant has been severely prejudiced".
(1) was the Inspector in error in approaching the matter, as it is common ground that he did, that the burden of proof was on the appellant to establish that the previous lawful use was not an HMO? and
(2) was the Inspector wrong in law to uphold the requirement in the enforcement notice at paragraph 5(2) either:
(a) because the previous lawful use was not shown to be an HMO; and/or
(b) because the requirements were in any event too imprecise?
"172(1) The local planning authority may issue a notice (in this Act referred to as an 'enforcement notice') where it appears to them --
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations".
"173(1) An enforcement notice shall state --
(a) the matters which appear to the local planning authority to constitute the breach of planning control; and
(b) the paragraph of 171A(1) within which, in the opinion of the authority, the breach falls.
(2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.
(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve wholly or partly any of the following purposes.
(4) Those purposes are --
(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or
(b) remedying any injury to amenity which has been caused by the breach.
(5) An enforcement notice may, for example, require --
(a) the alteration or removal of any buildings or works;
(b) the carrying out of any building or other operations;
(c) any activity on the land not to be carried on except to the extent specified in the notice ..."
"174(1) 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.
(2) An appeal may be brought on any of the following grounds ...
(b) that those matters have not occurred [i.e., the matters stated in the notice as constituting breach of planning control have not occurred];
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach".
(1) that the Inspector wrongly accepted the Council's assertion that the property had been in HMO use for more than ten years;
(2) that he incorrectly placed on the appellant the burden of proving otherwise;
(3) that he therefore erred in accepting the description of the breach of planning control in the enforcement notice as change of use from HMO to self-contained flats; and
(4) that in upholding the requirement of the enforcement notice for the whole property to be rearranged as an HMO failed to have regard:
(a) firstly, to the fact that there was no entitlement to require restoration of use as an HMO unless that was the lawful use; and
(b) that in any event the steps to be taken were excessive and/or unclear".
(1) that there had been no breach of planning control, which it was unable to do; or
(2) to establish that the steps required to comply with the notice were excessive.
(a) the lack of clarity in firm evidence of multiple occupation before 1988 was mentioned by the Inspector. The evidence about it was the statement by the LPA in May 1988 for the purposes of the current planning application to this effect:
"the house is now vacant and was previously in multi-occupation".
In the light of the Inspector's findings in the present case at paragraph 16, the material date for the purposes of a ten year period of use would be a commencement date of around December 1997. It was open to the Inspector to conclude that use as an HMO commenced before then. There was nothing to rebut that conclusion. Indeed on such evidence as there was, it was open to him to find that use as an HMO commenced before then on the balance of probabilities;
(b) there is no significant evidence that during the relevant period the property was ever used as a private dwellinghouse. On the other hand, there is significant evidence that the layout of the building was consistent with an HMO (see bundle 51, memorandum of meeting with Mr Green, 19th December 2000); and see also a letter of 19th November 1997 in which the appellant's own builder told the LPA planning officer that the appellant had assured him that the property was going to stay as a house in multi-occupation. That letter could be taken to imply an awareness by the appellant itself that, for at least a significant period, the use in question had subsisted, as well as a recognition that the LPA may well not countenance a change of use;
(c) in the light of those matters and others, the Inspector was entitled to form the view that the property had indeed been used for the necessary period as an HMO, or at the very least that the LPA's conclusion that it had been so used was not rebutted in the course of the appeal or at all.