England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		4th December 2006

1. JUDGE GILBART QC: In this case I am concerned with the interpretation and application of parts of those provisions of the Town and Country Planning Act 1990 which concern enforcement, and it is perhaps sensible to start this judgment by looking at the statute. By section 172(1) of the Town and Country Planning Act 1990:

"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 . . . "

I need not read the rest of the section.

2. By section 171B:

"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.

(4) The preceding subsections do not prevent . . .

(b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach."

Section 171A defines the carrying out of development without the required planning permission as a breach of planning control.

3. The appellant, Mr Romer, owns land at 221 Archway Road in north London. He also has an interest in land at 223 Archway Road in north London. The position is that at number 221 he owns it in conjunction with his wife Danielle Romer, and at 223 he owns it himself.
4. To put it neutrally, there are former garages at the rear of number 223 and at the rear of number 221 are former garages and a workshop. In the case of the second Enforcement Notice, which I shall describe in due course, the appellant made certain representations to the Inspector. He said that there had been a workshop structure at the rear of the premises (this is at the rear of number 221) in the past and at the rear of number 223 had been some garages. But there was constructed at the rear of number 221 a dwelling. That is described as being constructed in 1999, he says, on the site of a "previous derelict garage structure" and on the site of a "large workshop and an unsightly assortment of various ramshackle store sheds". He goes on to say:

"The appeal property comprises of a living/dining room of 23 m2, kitchen of 5.5 m2, two bedrooms [sizes are given], one study room, two bathrooms and two WCs and a fully enclosed secluded garden at the rear."

That was erected without the benefit of planning permission.

5. The London Borough of Haringey are the local planning authority for the area. They served an Enforcement Notice and that Enforcement Notice was dated 24th December 2002 and related to number 223 Archway Road. I say at once that the new house which I have just described was largely to the rear of 221 Archway Road. The Enforcement Notice served in December 2002 specified as a breach of planning control:

"Without planning permission, change of use of garages to living accommodation."

A plan attached to the Enforcement Notice showed the garages at the rear of number 223.

6. Mr Romer put in an appeal against that Enforcement Notice. He described his first response to the first reason as this:

"The property is a studio workshop and not a residential unit."

The London Borough of Haringey realised that it had made a mistake and instead of serving against the dwelling which had been constructed at the rear of number 221, had actually enforced against the garages at the rear of number 223. It then sought to extend the area covered by the Enforcement Notice to number 221, in submissions made to the Inspector of the first defendant who was dealing with the appeal. Mr Romer objected to that and said that he was dealing with the appeal on the basis that it related to number 223.

7. The first Inspector appointed by the Secretary of State produced his decision letter on 21st July 2003. It reads as follows:

"(1) It was apparent at the site visit that the wrong site had been identified in the description and the Notice plan which outlined a block of four garages at the rear of 223 Archway Road and fronting onto Cholmeley Park. One of those garages was still used as a garage/store and the two adjoining it had been converted into a studio workshop accessed by a door onto Cholmeley Park. The area used for living accommodation was in fact an area separately constructed on the site of the fourth garage outlined in the Notice plan and to the side and rear of four garages at the rear of 221 Archway Road. The Notice plan, therefore, only includes a very small area of the 'building' that is used for living accommodation within the area identified in the Notice.

(2) Secondly, whilst I note that the appellant (who was not professionally represented) had not appealed on ground (f), one of the requirements is to remove the development and restore to its original form. The reasons for issuing the Notice do include a comment at the beginning of paragraph 4 that the unauthorised development was completed less than four years before the issue of the Notice. As this allegation involves the change of the use of a building to residential accommodation paragraph 4 could refer to that, rather than any operational development. It is not clear at all whether the requirement refers to the removal of building works but that appears to me to be the more logical explanation of the second requirement.

Reasons

(3) In my view the Notice not only identifies the wrong site but I consider it is imprecise in its allegation and requirements. I acknowledge the representations made by the Council that the property is in one ownership (the appellant's) and he should, therefore, be fully aware of what the Notice relates to but it is clear from his detailed representation that he has not dealt with the appeal on the basis of what is behind 221 Archway Road. More importantly the Notice is not clear regarding whether it is referring to the development as only being the change of use or whether it also includes the operational development that has clearly taken place and there is no further explanation of the requirements in the Council's representations. The allegation also refers only to the use for residential accommodation although the Council acknowledges that two of the garages identified are used as a studio/workshop.

(4) I appreciate that I have wide powers of correction and that S173(5) gives the power to require alterations or the removal of buildings and also the erection of buildings to remedy the breach of planning control but, in my opinion, it is not clear from the wording of the requirement if this is what the appellant is supposed to do. He may have wished to pursue other grounds of appeal if the Notice was intended either to refer to operational development as well as material change of use or, in the alternative, the requirement was intended to refer to the removal of the operational development that has taken place in order to remedy the material change of use. The Council make no comment about whether or not the studio/workshop use should be included in any corrected allegation."

He then concluded that he could not correct the Notice without causing injustice and concluded that the Notice was defective by reason of uncertainty.

8. A second Enforcement Notice was then issued. It was issued on 28th June 2004 under section 171A(1)(a) of the Act. It was now said to relate to the "dwelling/premises and associated land at the rear of 221 Archway Road" and if one looks at the plan, there is shown at the rear of number 221 an area which is hatched, and there is also an area roughly in the shape of a bow tie. Most of the bow tie lies within the curtilage of number 221; a small part, one end of one bow, lies in 223. The allegation in the Enforcement Notice was:

"Without planning permission, the change of use of the storage area and garage and the erection of a single storey building to provide living accommodation."

9. The appellant put forward grounds of appeal. They included the following:

"[The] appeal property has been in existence for over 5 years.

The appeal property was constructed (over 5 years ago in 1999) on the site of a previous derelict garage structure, a large workshop and an unsightly assortment of various ramshackle store sheds that were used to store building materials.

Between 1995 and 1998 the large workshop structure was used as living accommodation for the appellant's workmen (contracted from the north of England) during the refurbishment/conversion of the main house at 221 Archway Road."

Then there is a description of the appeal property. One notes that the workmen were not said to have moved to live in the Archway Road but had been contracted from the north of England. On page 36 of the bundle that document continues; the appellant refers to the area which was hatched and describes that as the area previously used as the derelict garage structure, large workshop and ramshackle store sheds. He refers to the property which has been built as having been constructed over five years ago.

10. I now come to the second decision letter. This is a decision letter of 2nd November 2005 issued after a public inquiry. The Inspector considered the appeal on ground (d). Ground (d) refers to section 174(2)(d) of the Town and Country Planning Act 1990, and it is that at the date when the Notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters. The Inspector also considered whether or not planning permission should be granted on the deemed application for planning permission which the Act deems to occur in the event of an Enforcement Notice appeal. In his decision letter, the Inspector considered number 221 Archway Road. He described it as being several flats, one of a line of properties fronting on to Archway Road. He went on:

"(2) . . . The land to the rear of that property extends as far as a less well used road called Cholmeley Park. Blocks of garages front onto Cholmeley Park, one to the rear of 221 and another to the rear of 223. A wall linking these two blocks holds a door providing access to the single-storey dwelling which is the subject of this appeal. This dwelling occupies much of the area between the garage blocks and behind the southernmost of the two.

(3) It is not in dispute that the dwelling was built without the benefit of planning permission or prior approval under the building regulations. On 24th December 2002 the Council issued an enforcement notice which, they say, sought to remove the dwelling which forms the subject of the present appeal. An appeal against this 2002 notice was dismissed, the Inspector finding that it identified the wrong site and was imprecise in its allegation and requirements. For these and other reasons he quashed the notice."

He then went on to consider the appeal on Ground (d). At paragraph 5 of his decision letter he said this:

"(5) Subsection 171B(4)(b) indicates that the remainder of section 171 does not prevent the taking of further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken, or purported to take, enforcement action in respect of that breach. This has become known as the 'second bite' provision and is referred to at some length in pp 2-3598/3-4 of the Encyclopaedia of Planning Law and Practice.

(6) The Encyclopaedia suggests (without dissent from either main party to the present appeal) that subsection 4(b) cannot be relied upon to allow further enforcement action where the earlier and later Enforcement Notices relate to two different physical developments or two different changes of use, but it can be relied upon where both relate to the same actual breach of control, albeit described in different ways. In Jarmain v SOSETR (2000) [I interpose to say that Jarmain is reported at [2002] PLR 126]) the Court of Appeal held that, in this context, the term referred to the physical reality on the site rather than the legal concept of a breach of planning control. In reaching this decision the Court indicated that it was strongly persuaded by the need to avoid unmeritorious technicalities from creeping once again into the planning system, and the danger of allowing enforcement law to return, in part, to 'the world of pettifoggery and arid technicalities that attracted such strong judicial disapprobation in the 1970s and 1980s'. It was observed that to take a different approach might reward conduct that at best was devious and, at worst, was deceitful. The Court added that 'it would make a farce of the legislation if, by claiming that one unlawful use was a different unlawful use, a landowner could take advantage of the four year limit and acquire immunity from process for something he had known all along was unlawful'.

(7) Some of these comments were particularly aimed at the circumstances in Jarmain, but many have appreciable relevance to the present case. The present appellant has candidly admitted that he knew that the dwelling he built required planning permission, and that he took positive steps to prevent the Council knowing that he had built it. These included first obtaining permission for, and building, a tall garden wall, and then using it to conceal the building works behind it. He also volunteered that his failure to seek permission under the building regulations and the delay in notifying bodies such as the post office was motivated by an attempt to avoid the presence of the dwellings becoming known until it had acquired immunity from enforcement action.

(8) The appellant has suggested that subsection 171B(4)(b) does not apply in the present case because the breach of development in the 2002 Notice was substantially different from that alleged in the present Notice [I think the Inspector means breach of development control]. He has referred to differences in the land identified, the description of the development, the character of development (ie, a change of use as opposed to operational development), the land registration numbers, and the overall ownership. There were such differences, but there were also important similarities, principally that both notices referred to living accommodation and both sought the cessation of the residential use and the removal of the structure which housed it. Moreover, it is clear from the evidence that there was never any serious doubt in the minds of the appellant, the Council, local residents or the Inspector who dealt with the previous appeal, that the subject of that appeal was the dwelling which had been constructed in the area behind and between the garage blocks. There is no other dwelling in this area which could be confused with that built by the present appellant and which is also the subject of the present appeal.

(9) I have taken into account the rather unusual circumstances of this development and borne in mind, too, the judicial decisions relating to this case, the commentary upon those decisions, and the underlying principles identified in the reporting of those decisions. I am satisfied that both Notices relate to essentially the same development and are, in effect, the same action under different terms. It follows that the provisions of section 171B(4)(b) apply to the present appeal.

(10) The Council contend that the development referred to in the Enforcement Notice was substantially completed in the summer of 2001 and that its residential use began at about that time. The appellant's evidence, much of which was from the appellant himself and his daughter (who lived in the premises) was directed towards establishing that these events took place early in 2000. There is little substantial evidence which indicates an earlier date. Whichever version of events is correct, it is clear that the use began and the development was substantially completed, less than four years before the service of the first Enforcement Notice. Bearing in mind the provisions of section 171B(4)(b) I conclude, on the balance of probabilities, that the development alleged in the Enforcement Notice took place less than four years prior to the commencement of enforcement action against them. For the reasons given above, and having regard to all other matters raised, I consider that the appeal on Ground (d) should not succeed."

The Inspector then went on to consider whether or not planning permission should be granted on the deemed planning application and declined to do so. He refused to grant planning permission.

11. In his second ground, which I deal with first, Mr Boyle for the appellant says that section 171B(4)(b) does not bite. The question under the Act is: is it the same breach as the London Borough of Haringey purported to enforce against on the first occasion? It is common ground that the first Enforcement Notice was served within four years of the operational development taking place. I have been referred to the decision of the Court of Appeal in Jarmain. The Court of Appeal was there considering an appeal from the late Mr Nigel MacLeod QC, sitting as a Deputy High Court judge. I need not go into the facts of the case, in part because they are referred to sufficiently in the decision letter of the Inspector. The ratio of Jarmain was to uphold the decision of Mr Nigel MacLeod QC for the reasons he gave. I am therefore going to read out from the judgment the extract from the Deputy Judge which was upheld by the Court of Appeal. Mr Nigel MacLeod QC said as follows:

"When section 171B is read as a whole it appears clear that the section is concerning itself with breaches of planning control and the time limits applicable when enforcing against these breaches.

Various types of planning control relating to different types of development are referred to in the section. What the section is concerned with are the various acts of development which constitute the breaches of control, not the description of the substantive activities. It is the subject matter of the Enforcement Notice, the actual development which is being referred to by the words the breach, rather than the words which have been used to characterise the development which itself constitutes the breach of planning control. The description of a breach cannot in itself be a breach of planning control. What this proper interpretation means is that the subsection cannot be used to cover two different physical developments or two different changes of use, but it can be used to cover the same actual breach of development control which is described in different ways."

12. In Jarmain the case concerned different ways of describing the same breach of planning control which had taken place on the same site. The critical question in this case is whether or not the fact that the same development which was being described was on a different site -- namely the site immediately adjacent -- is such as to remove this type of enforcement from the ambit of section 171B(4)(b). In my judgment, the Inspector was plainly right in the approach he adopted. He was dealing with the same development, he was dealing with the same owner. While Mr Romer was an owner in common in one of them, he was the same owner in fact. On the findings of the Inspector, it was the same development falling within subsection (4)(b). I therefore dismiss the first ground of the application which I find unjustified.
13. The second ground is one I do confess to finding difficult to follow, but it appears to be this. Mr Boyle says that because the workshop had been used as residential accommodation for a period of more than four years before the first Enforcement Notice, it was immune from enforcement. I think that is misconceived. It was immune from enforcement if it was a separate dwelling house, but there is no evidence that it was a separate dwelling house. The appellant's case, as repeatedly urged on both appeals, was that it was a workshop in which workmen lived while they were carrying out the job. If so, it was not a single dwelling house but it had a mixed use as residential accommodation and as a workshop.
14. The other difficulty of that argument is that it was also part of the curtilage of number 221 Archway Road. In other words, it was not a separate planning unit. So it seems to me, in my judgment, that there is a misunderstanding of the approach here, for two reasons; (1) it was not in use as a single dwelling house, and (2) it was not a separate planning unit from the rest of number 221 and therefore did not have an use as a single dwelling house. But further, it is the appellant's case that the new building incorporated the old building in the larger whole. If that is right there must, in my judgment, be a new planning unit and there was a new chapter in the planning history. That is an argument which Mr Boyle did not address but, to be fair to him, nor did Mr Bourne. To be fair to them both, the Inspector did not grapple with it either. But it seems to me that must be the case.
15. So on several different grounds, it seems to me that Mr Boyle's argument that the Inspector should have had regard to the existence of a pre-existing immune use as a workshop and residential accommodation must fail. This application is dismissed.
16. MR BOURNE: My Lord, I am very grateful. The first defendant has an application for its costs. If your Lordship were to be with me on that application, I would also ask for --
17. JUDGE GILBART QC: Have you provided them in summary form for Mr Boyle?
18. MR BOURNE: My Lord, yes.
19. MR BOYLE: We have no objection, my Lord.
20. MR BOURNE: I am very grateful.
21. JUDGE GILBART QC: What is the sum?
22. MR BOURNE: The sum is £6,044.
23. JUDGE GILBART QC: I order the payment of costs in that sum.
24. MR BOURNE: I am very grateful.
25. JUDGE GILBART QC: Any other applications?
26. MR BOYLE: My Lord, I believe that this is an appeal on appeal and I have no application to make to my Lord.
27. JUDGE GILBART QC: Say that again.
28. MR BOYLE: This is an appeal on an appeal, then I have no application to make to my Lord. If I am instructed to go for an --
29. JUDGE GILBART QC: I thought you did have to apply to me?
30. MR BOURNE: I understand that that is right.
31. JUDGE GILBART QC: I think you have to apply to me if you want to apply for permission to appeal.
32. MR BOYLE: I am not certain that is the case, but if that is the case then I do apply formally to my Lord for leave to appeal. I have understood that as it is --
33. JUDGE GILBART QC: Permission was given for the application to be made and it is now an application under section 289 of the Act. The normal rules about permission to appeal apply, do they not?
34. MR BOURNE: My Lord, my understanding is actually that Mr Boyle has it right.
35. JUDGE GILBART QC: If I were permitted to, I would unhesitatingly refuse your application. It is a very straightforward case. If I do not have the right to say so, it is for you.
36. MR BOYLE: I am grateful.
37. JUDGE GILBART QC: Thank you.