England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		16 July 2008

1. MR JUSTICE OUSELEY: This is an application for permission to challenge the decision of an Inspector given on an appeal under Section 289 of the Town and Country Planning Act 1990 in respect of an enforcement notice appeal.
2. The London Borough of Redbridge served an enforcement notice on 3 May 2007 alleging that there had been a breach of planning control in the use of an outbuilding at the rear of what had become conjoined premises at 53-55 Argyll Road as a self-contained residential unit and as a gym for family members. The notice required the building to be removed. The local authority recognised, as did the Inspector, that that notice needed to be corrected, and corrected it so as to allege operational development which needed permission which it did not have. No challenge is brought, and rightly, to the Inspector and local authority's decision in that respect.
3. In reality, there were only two grounds of appeal against the enforcement notice before the Inspector. The first was that the building, as erected, was permitted development because it fell within the size tolerances within Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995 and also, as required by Class E was:

"For a purpose incidental to the enjoyment of the dwelling house as such."

4. The second ground was that the building had been substantially completed more than four years before the enforcement notice was served. That ground was rejected and no challenge is raised to that.
5. The premises at 53 and 55 which had been conjoined are owned by Mr Satwinder Basi and his father, GS Basi. It had been their contention in the appeal on ground (c) that the building was used for a purpose incidental to the enjoyment of the dwelling house as a dwelling house. It was said that the building was used for storage and personal recreation. The Inspector found that there were indeed items of personal recreation within that building, but storage, he concluded, was markedly less clear in circumstances. He rightly found that the burden of showing that the building was used for purposes incidental to the enjoyment of the dwelling house as such lay upon the appellants. There were personal items there, but also furniture and domestic appliances used in other properties owned by the appellants. In addition, drinks were stored in one of the rooms in the building, connected with Satwinder Basi's brother's off-licence in East Ham, which may or may not have been an interim arrangement.
6. The Inspector said that while the appellants also said that the building was used for domestic storage associated with numbers 53 and 55:

"The evidence of other forms of storage unrelated to the dwellings as such -- no claim was made this was de minimis -- strongly suggests to me that the building was also used for purposes other than those that can reasonably be regarded as incidental to the enjoyment of numbers 53 and 55."

He then turned to the reference in the enforcement notice to the use of the building as a self-contained residential unit which could not be regarded as incidental to dwelling house use. He commented that there was no tangible evidence of this residential use within the building and noted that the 2004 planning application had described each room as a store. However, a subsequent application for such a building had been received in March 2005 which expressly referred to the conversion of the outbuilding into a granny flat; the plans showed part of the rear of one of them laid out as living accommodation. The agent who submitted the application with the knowledge of Mr GS Basi and Mr SS Basi indicated that the intention was for Mr and Mrs GS Basi to move into that.

7. In cross-examination on oath before the Inspector, Mr SS Basi indicated that that application was a device to obtain planning permission in order to keep the building, as suggested to him by Mr Tarry, and that the covering letter was false. He provided a statement in which he said that he was aware of and had consented to that piece of deception. In the evidence which he gave to the Inspector, he said that that was no more than a piece of deception and could not be used as evidence of his true intention. The Inspector said of that:

"But, as neither Mr Tarry nor Mr GS Basi, the third appellant, appeared at the inquiry I could not hear their version of events relating to the 2005 application first-hand, nor could this be tested by cross-examination. In the light of this I am loath to attach great weight to Mr SS Basi's assertions in this respect. In so saying I note from Mr Tarry's letterhead in the qualifications recorded on the planning application form that he is a charted professional. I find it difficult to comprehend that such an individual would have been a party to what effectively would have been a not insignificant deceit. Having heard that the application was authorised by the witness's father, I am inclined to take it at face value, namely a tangible indication of what would have been an intent to use part of what would have been at the time a very recently erected building as living accommodation."

That also made the contention that the building was required for purposes incidental to the enjoyment of 53 to 55 "somewhat open to question."

8. He took all those matters into account and concluded that he was not satisfied that the building fell within the scope of permitted development.
9. As I have said, at the enquiry not merely did Mr Basi give evidence on oath about the 2005 planning application, he provided a signed statement saying:

"When the enforcement officer served the notice my parents consulted a surveyor, Mr Tarry, who advised and prepared the plans for granny flats. This was contrary to the purpose of the outbuilding. However, we were reassured by Mr Tarry the application for planning permission would be successful."

His statement also said that his parents were in India for medical reasons and would be returning later. There was no statement from Mr Tarry.

10. Subsequently, as part of the argument in this appeal, a statement has been provided by Mr Tarry upon which Mr Rana, who has appeared for the appellants, has put some weight. In that statement, dated 7 April 2008, Mr Tarry does no more than say that he confirms that the Basis had no intention of using the outbuilding for residential purposes but that he had advised them to make the application for a granny flat, as he thought it would be successful, although contrary to the intentions of the applicants.
11. Mr GS Basi, the father, has also put in a statement after the inquiry, saying that it had been Mr Tarry who advised them to do what they had done. He also said that had he known this evidence was going to be important he would have returned from India.
12. I note that neither Mr GS Basi nor Mr Tarry make any comment on the fact that if what they are now saying is right, they would have been party to what the Inspector had described as a significant act of deception.
13. The primary ground upon which Mr Rana submits permission to proceed should be granted is ground 5 of his grounds. Ground 5 is to the effect that there has been a mistake of fact amounting to an error of law in that there is now evidence from Mr Tarry which shows that the Inspector reached his conclusion on a false basis. He referred me in this context to paragraph 66 of E v Secretary of State for the Home Department [2004] EWCA Civ 49, in which Carnwath LJ set out the relevant test for mistake of fact giving rise to unfairness, as a separate head of challenge in an appeal on a point of law. There are of course earlier planning cases which illustrate the proposition.
14. There are, for these purposes, four requirements. First, there must have been a mistake as to an existing fact. Second, the fact must be established in the sense of being uncontentious and objectively verifiable. Third, the appellant must not have been responsible for the mistake. Fourth, the mistake must have played a material, but not necessarily a decisive, part in the tribunal's reasoning.
15. I would accept that it is at least arguable that the first and fourth components for that test are satisfied. I do not think it is arguable that either of the other tests are.
16. Where somebody puts forward a proposition as true, then says when it is used against him that it was put forward as a deception, accusing someone else of having advised him to be untruthful with no detail or explanation, and then after losing produces further evidence from that person which ignores the dishonesty but very shortly deals with his advice, the asserted deception could not possibly be regarded as uncontentious and objectively verifiable fact. Notwithstanding certain havering of Mr Honey in this respect, it is obviously highly contentious and not objectively verifiable. It is merely an unusual form of dispute about the conclusion which the Inspector reached, seeking to rely on unusual fresh evidence. The distinction should be very firmly borne in mind between the proof of a pre-existing fact so that everybody now agrees that that pre-existing fact was true, and having another attempt at overturning the decision on the basis of inevitably disputable fresh evidence, regarding factual issues.
17. Nor do I think that it can possibly be said that the appellants were not responsible for the mistake. They are responsible for it, if mistake it was, in two ways. First, it was for them to get evidence together, including that of Mr Tarry and Mr Basi, if they were going to pursue that point. Second, it is very difficult for someone to say that they should have been believed when they later said that they had been engaged in deception. In those circumstances they are clearly responsible for the mistake. So that ground goes.
18. It has also been, and I pick it up here, a theme throughout a number of the grounds, that the Inspector ought to have given greater weight to what Mr S Basi said, indeed erred in law in not giving decisive weight to what Mr S Basi said.
19. I reject that entirely. The Inspector was entitled to treat Mr S Basi's evidence in the way that he did and to have real reservations about the truthfulness of the assertion that some other professional, who was not called to assert his dishonesty or defend his reputation, had been involved in a process of deception. In reality, the argument before me was that Mr Basi had been party to a significant act of deception and should be believed when he admitted, when it was best for him to do so, that that is what he had been doing. In my judgment, the only possible criticism that can be made about the Inspector's decision is that he treated the evidence of Mr Satwinder Singh Basi with a good deal more respect than it merited.
20. So far as ground 6 is concerned, it was contended that the Inspector ought to have offered the appellants an opportunity to call Mr Tarry and Mr G Basi by adjourning the enquiry of his own motion, for there was no application for an adjournment in order that they be called. That is very much a matter for the Inspector's discretion. I am prepared to accept that he had power to do that but there was no reason for him to have done so in the light of the way the evidence before him had been presented.
21. It is also said that the evidence in relation to storage use was, in effect, equivalent to the helicopter use discussed in South Oxfordshire District Council v Secretary of State for Transport and the Regions [1999] CO1456. In that case the use of a helicopter landing pad by the house owner for helicopter flights for domestic, recreation and business purposes, was likened by the Inspector to the use by someone of a private car from their residence to make business and recreational trips. The court had held that there was no error of law by the Inspector in so concluding. It does not follow at all that the Inspector here was bound to conclude that the storage use was no more than the sort of use which one might find being made of residential property, eg with occasional storage from time to time of items associated with a business. The Inspector was fully entitled to conclude that the storage use of the new building was not incidental to the enjoyment of 53 and 55, but was instead incidental to the business which the appellant and his brother carried on. The conclusion of the Inspector was not arguably unlawful.
22. MR HONEY: My Lord, I take it from your judgment that you are refusing permission.
23. MR JUSTICE OUSELEY: I am refusing permission.
24. MR HONEY: I am grateful, my Lord. In these circumstances we would apply for our costs. I have a schedule of costs which has been handed to my learned friend, if I can pass that up to the court.
25. MR JUSTICE OUSELEY: Yes. (Handed)
26. MR HONEY: My Lord, the costs total is £2,672-odd.
27. MR RANA: My Lord, I have seen the schedule of costs once the skeleton argument was done but I haven't seen the schedule which came to £2,762. (Pause) I can't in principle object to costs.
28. MR JUSTICE OUSELEY: There will be an order for the costs in favour of the Secretary of State in the sum of £2,672.