England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
BIRMINGHAM DISTRICT REGISTRY
BIRMINGHAM CIVIL JUSTICE CENTRE

		21/12/2010

See: Ruling on application for judicial review of costs decision

Mr Justice Foskett:

Introduction

1. The matters before me relate to two adjacent properties owned by the Appellant, Mr Kirpal Singh, namely, 111 and 113 Holyhead Road, Coventry. He lives at 109. They arise from a decision of the First Respondent by his Inspector, Mr N P Freeman, BA(Hons), Dip TP, MRTPI, DMS, dated 5 March 2010, following appeals by the Appellant against enforcement notices issued by the Second Respondent, Coventry City Council. The Inspector held an inquiry on 9, 10 and 11 February 2010.
2. The Appellant seeks permission to appeal against that decision pursuant to section 289 of the Town and Country Planning Act 1990 and, if permission is granted, to appeal against the decision. An appeal under s.289 may only succeed on the grounds of a point of law and the first threshold for the Appellant to cross is to demonstrate an arguable error of law in the Inspector's decision.
3. He also seeks permission to apply for judicial review in respect of the costs decision made by the Inspector and, if permission is granted, to be granted judicial review of the costs decision.
4. The matters come before me as a "rolled up" hearing of both matters pursuant to orders made by Wyn Williams J and Beatson J. At the conclusion of the argument on both sides I indicated that I regarded the points raised under the s. 289 appeal as arguable and granted permission. The judicial review application was left over to be dealt with following my decision on the substantive issue.

Background

5. Each property is a separate planning unit and each is in use as a house in multiple occupation ('HMO'). The procedural background is a little complicated, but in essence there is no dispute that prior to the material events 111 could be used lawfully for 5 units of occupation and 113 for 7 units. The units were in the nature of bedsits. A Lawful Development Certificate for 5 bedsits at 111 was granted on 13 June 2005 and in relation to 113 the Council apparently confirmed the position I have indicated in 1997.
6. The dispute has arisen out of steps taken by the Appellant to increase the number of units in each property to 10. He did this by utilising the existing rooms, including the second storey attic space, in each property, by the use of rear extensions at each property and the incorporation of a dormer extension at 111 to enable the use of two attic rooms in the second storey of that property.
7. He sought and obtained planning permission for the rear extensions at each property, the permissions granted being on the basis of permitted drawings. It is not in dispute that the dimensions of the built extensions exceeded the dimensions shown on the permitted drawings. He did not obtain planning permission for the dormer extension for 111 and did not seek planning permission for increasing the number of units in each property.
8. The planning authority issued 3 enforcement notices requiring him, amongst other things, to remove or reduce the number of bedsits in his properties to 5 units in 111 and 7 units in 111 (saying that otherwise there would have been an "unacceptable intensification" of use of the properties) and to reduce the size of extensions that he had built at the rear of both those properties to the dimensions permitted under existing planning permissions.
9. The basis for the suggestion that there had been an "unacceptable intensification" of the use of the properties was expressed in similar fashion for each property. It will suffice to quote what was said in the Enforcement Notice relating to 111:

"The creation of 10 flats is an unacceptable intensification of the use of the premises providing additional units which have a cumulative impact on the character and intensifies the demand for on-street parking provision in an already heavily parked area where on road parking is limited, to the detriment of highway safety, the free flow of traffic and the amenities of the occupiers of adjacent dwellings. The development is therefore considered to be contrary to Policies BE9, H1, H2, H6, AM22 and the Supplementary Planning Guidelines 'Spon End and Naul's Mill Area of Local Distinctiveness' prepared in accordance with Policy BE2 of the Coventry Development Plan 2001".

10. In a nutshell, the Appellant's case in the appeals against the enforcement notices was that he did not need planning permission to create additional bed-sit units in the properties - or alternatively, if he did, planning permission ought to be granted - and in relation to the rear extensions, that they should be permitted in what had, in the period before the proceedings before the Inspector, become their present form with a reduced height (achieved by the removal of 5 brick courses) which he said had been reduced in response to a suggestion from the Planning Officer.
11. The Appellant appealed against the Enforcement Notices. I will say a little about the grounds of appeal shortly, but they included a ground based on subsection (a) of s. 174(1) in each, thus in effect constituting an application for planning permission in respect of the alleged breaches of planning control. Prior to the service of the Enforcement Notices, he had (without prejudice to the question of whether planning permission was in fact required) sought to regularise the alleged breaches of planning control by applying for planning permission for the additional bedsits and for the rear extensions as built. Those planning applications were refused by the planning authority and the Appellant also appealed against those refusals. The inquiry before the Inspector appears to have been so constituted that all relevant avenues for debate about what had happened at the properties could be determined on their merits.
12. The formal position was that the Inspector had to deal with 5 substantive matters in respect of which appeals were launched:

(a) 3 enforcement notices –

i) In respect 111, (issued on 2 June 2009) - this was Enforcement Notice 1 and characterized by the Inspector as Appeal A.

ii) In respect of 113, (issued 3 July 2009) - this was Enforcement Notice 2 and it was known as Appeal B.

iii) In respect of 113, (issued on 3 July 2009), this was Enforcement Notice 3 and became known as Appeal C.

(b) 2 applications for planning permission–

i) In respect of 111, a series of applications applied for on 19 March 2009 and refused by the planning authority by notices dated:-

a) 21 May 2009 (Appeals I and J); and

b) 15 June 2009 (Appeals D, E, F, G and H).

ii) In respect of 113, by applications made on:-

a) 19 March 2009 and refused by notice dated 17 June 2009 (Appeal N); and

b) 24 March 2009 and refused by notices dated 15 June 2009 (Appeals K, L and M).

13. In respect of the enforcement notice appeals:

i) The Appellant was successful in respect of Enforcement Notice 3 (Appeal C) and this enforcement notice was quashed and planning permission granted pursuant to the Ground (a) Appeal. It does not form any part of this appeal.

ii) In respect of Enforcement Notices 1 and 2 (Appeals A and B), the notices were upheld with alterations made by the Inspector. By reason of those alterations each appeal succeeded in part, but was dismissed in part.

14. The matters that are subject to the appeal to this court arise from the way in which the Inspector dealt with the alteration of those two Enforcement Notices (Numbers 1 and 2). I have used the word "alteration" as a neutral expression for present purposes.
15. The enforcement notices read as follows:

Enforcement Notice 1:

"The breach of planning control as alleged in the notice is -

'Without planning permission: the erection of a single storey rear extension; the erection of a dormer extension to the roof; and the alteration of the premises from 5 bedsits to form 10 flats'.

The requirements of the notice are:

1) Remove the single storey rear extension and all building materials and rubble arising from compliance with this requirement from the land and reinstate the rear elevations to their original position before the breach of planning control took place;

OR

Alter the single storey rear extension, including reducing the height and projection of that extension, in accordance with details approved under [the original] planning permission reference … and remove all building materials and rubble arising from compliance with this requirement from the land;

AND

2) Remove the rear dormer extension to the roof and all building materials arising from compliance with this requirement from the land and reinstate the original roof slopes, to their position before the breach of planning control took place using materials of similar appearance to those on the remaining roof;

AND

3) Cease the use of the property as 10 flats and return the property to a condition suitable for occupation as 5 bedsits."

Enforcement Notice 2:

"The breach of planning control as alleged in the notice is -

'Without planning permission: The intensification of use from 5 bedsits and 2 flats to 6 flats and 4 bedsits; the erection of a ground floor rear extension; and the erection of a first floor rear extension'.

The requirements of the notice are:

(1a) Remove the single storey rear extension and all building materials and rubble arising from compliance with this requirement from the land and reinstate the original rear elevations to their original position before the breach of planning control took place;

OR

(1b) Alter the single storey rear extension, in accordance with details approved under [the original] planning permission reference …, including reducing the height and projection of the single storey extension;

AND

(2) Cease the use of the property as 6 flats and 4 bedsits and return the property to a condition suitable for occupation as 5 bedsits and 2 flats."

16. The Appellant raised the issue of the validity of the Enforcement Notices before the Inspector on the basis that they were both unclear as to what was alleged in relation to the bedsits and what they were requiring the Appellant to do to remedy the problem. The argument was that the Notices were unclear as to whether they were alleging that he had built something that he was not entitled to build (as far as the bedsits were concerned) – in other words, an "operational" issue - or whether he was using the two houses in an unauthorized manner – in other words, a "use" issue. The distinction between the use to which the buildings were put and the operational nature of their conversion and, where appropriate, erection was, it was argued, in effect blurred in the notices.
17. The Inspector accepted that the Notices were not clear in these respects. It is appropriate to quote in full what he said about them and what he intended to do about them. Paragraphs 4 – 11 of the Decision Letter were as follows:

"4. For the appellant it was accepted that the notices are not a nullity. Rather it is argued that they are invalid as worded and incapable of correction without transforming them into new notices which would cause prejudice and injustice to the appellant. The word 'prejudice' does not appear in s176 of the Act the only test being whether the correction or variation would cause injustice.

5. The appellant claims that the wording of the alleged breaches in respect of the uses in Notices 1 & 2 are flawed in that neither refers to a material change of use, the correct basis for asserting that development has taken place, that Notice 1 simply uses the word 'form' which is concerned with operational development and that Notice 2 uses the words 'intensification of use' which of itself does not amount to development. There is also criticism of the ambiguity in the requirements in both notices to return the property to a condition suitable for occupation as 5 bedsits (Notice 1) and 5 bedsits and 2 flats (Notice 2). Emphasis is laid on the answers of Mr Potts the Council's Enforcement Officer that he did not know whether the notices were clear and would have to seek advice, what the difference is between a flat or a bedsit, whether en-suite facilities would have to be removed, or what particular internal arrangement of the appeal properties was necessary in order to achieve compliance.

6. The Council resist the assertions arguing that the notices are sufficiently clear as they stand although it would have been helpful to have used the words "material change of use" in the alleged breach in Notices 1 and 2. In this respect an alternative form of wording is suggested including these words which it is asserted could be substituted by way of correction (S176(1)) without causing injustice to the appellant. It is also maintained based on Westminster CC v SSE and Aboro [1983] JPL 602 that it is not necessary to specify the use from which it is alleged a material change has occurred only the use which is claimed to be unlawful. So whether it was 5 bedsits or flats or 7 is immaterial as there is agreement that there are now 10 units in both properties. In terms of the requirements it is argued that these are clear in that 111 should only contain 5 bedsits and 113 should only contain 5 bedsits and 2 flats and it is up the appellant to decide how he arranges these units of accommodation.

7. Dealing firstly with the alleged breaches as so described, I find that the failure to use the words 'material change of use' in either of the notices creates considerable ambiguity as to what the breach is that the Council are alleging. The point about not having to specify the previous use is, based on Aboro and Ferris v SSE [1998] JPL 777, a sound submission but that does not address the fundamental uncertainty that arises due to the use of the words "intensification", "alteration" and "form" without making clear that these parts of the notices concern a material change of use. In closing submissions the Council accept that, notwithstanding the suggestions regarding correction, the notices are not "very well drafted in alleging the breaches".

8. On the matter of what the difference is between a flat and a bedsit, I agree with the submission for the appellant that the interchangeable use of these words by the Council and the lack of clarity and seeming inconsistency between the evidence of the Council's witnesses as to how to differentiate between one and the other compounds the ambiguity. I accept that from the evidence before me neither party is maintaining that the flats or bedsits in question are self-contained single dwellinghouses, and the Development Plan makes clear that both flats and bedsits can be included in HMOs. Nevertheless, the alleged breaches do not refer to the properties being HMOs or explain, by reference to a plan, which units are flats and which bedsits.

9. Moving on to the requirements of Notices 1 and 2, the terms 'flats' and 'bedsits' occur again without any clear explanation as to which is which. Furthermore, the words "…return the property to a condition suitable for occupation…" are vague and do not tell the appellant what he is required to do to ensure compliance. There is also no plan showing the layout and arrangement that is required to comply with the notice.

10. The Council assert that they do not wish to dictate any particular arrangement and that it is up to the appellant as to how the bedsits are arranged. I consider that this is at odds with authority of Miller-Mead v MHLG [1963] 1 All ER 459 which indicates that a notice should be clear on its face and tell the recipient what he has done wrong and what he needs to do to remedy it. The absence of a plan showing the arrangement that is required to comply with the notices means that they are not clear in these respects leaving the appellant in doubt as to what he has to do to comply. No plans were submitted by the Council at the inquiry to illustrate the precise arrangement they require and I do not consider that it would be right that I introduce plans given the lack of opportunity for the appellant to consider them and the remaining uncertainty in my mind as to what is actually sought.

11. Having regard to these points, I consider that the parts of the notices which concern flats and bedsits are fraught with uncertainty. I have carefully considered whether I am in a position to use my powers under s 176(1) of the Act to correct the allegations and vary the requirements to address these defects but I do not consider I can do so with any certainty that this would not cause injustice to the appellant. However, as the validity arguments only extend to the use aspects of the notices and these are separate allegations from the alleged operational development, I will use my powers to delete both the alleged breaches and consequent requirements in these respects but save the notices in terms of the extensions. In doing so, I consider that no injustice would be caused to either party. Depending on the outcome of the other appeals it will be open to the Council to consider whether it is expedient to serve fresh notices in terms of the use of the properties."

18. It is the way that the Inspector chose to give effect to the decision that the Notices were defective and the consequences of that decision for other arguments that the Appellant had that lies at the heart of the present appeal. I will return to those matters when I have recorded what else the Inspector did and said.
19. The directions he gave in order to implement the decision reflected in paragraph 11 of his decision were as follows:

"68. I direct that the enforcement notice (Notice 1) be corrected by the deletion of the words "and the alteration of the premises from 5 bedsits to form 10 flats" from Section 3 and sub-paragraph 3) (3rd requirement) in its entirety from Section 5. I also direct that the enforcement notice be varied by the deletion of the number "6" and the substitution of the number "12" as the period for compliance at Section 6. Subject to these corrections, variations and partial success, I dismiss the appeal, uphold the enforcement notice, and refuse to grant planning permission on the application deemed to have been made under section 177(5) of the 1990 Act as amended.

69. I direct that the enforcement notice (Notice 2) be modified by the deletion of the words "The intensification of the use from 5 bedsits and 2 flats to 6 flats and 4 bedsits" from Section 3 and sub-paragraph (2) (2nd requirement) in its entirety at Section 5. I also direct that the enforcement notice be varied by the deletion of the number "6" and the substitution of the number "12" as the period for compliance at Section 6. Subject to these corrections, variations and partial success, I dismiss the appeal, uphold the enforcement notice, and refuse to grant planning permission on the application deemed to have been made under section 177(5) of the 1990 Act as amended."

20. The period set for compliance with the requirements in each notice had been 6 months, but the effect of his directions was to extend it to 12 months after the relevant notice took effect.
21. The effect of this direction (consistent with the Inspector's view of the way the notices were phrased) was simply to delete from the purview of the Enforcement Notices any reference to the use of the buildings for the purposes of bedsits. The notices were left intact in relation to the suggestion of alleged "operational development".
22. Miss Sarah Clover, who represented the Appellant at the inquiry and who has presented the appeal before me, contends that the Inspector did not have the power to act as he did in the circumstances and, for the reasons to which I will refer shortly, in consequence failed to consider certain of the Appellant's grounds of appeal which, she said, were fundamental to the case advanced and in respect of which he (the Appellant) was entitled to a decision.
23. The Inspector undoubtedly thought that, having taken the course he did, certain matters that had been the subject of the Appellant's grounds of appeal no longer fell for determination.
24. In the first place, he had recorded at the beginning of the Decision Letter that "the ground (c) appeals relate only to the use of the building and not the operational development (rear extensions and dormers) alleged in Notices 1 and 2 which is accepted as amounting to development for which there is no planning permission." What he said, having expressed himself as he did in paragraphs 4-11 of the Decision Letter (see paragraph 17 above), was that in the light of his findings on what he described as "the validity point" he was of the view that "these grounds are only being pursued in connection with the use of the buildings [and] there is nothing remaining to be considered on these grounds." (My emphasis). Ground (c), of course, raises the question of whether the matters raised in the relevant enforcement notice "constitute a breach of planning control." Furthermore, in relation to the ground (f) issue raised, he said this (at paragraph 63):

"Given my intention to delete the requirements relating to the use of both properties there is no need to consider this ground in these respects. The requirements in terms of the extensions I consider to be reasonable and not excessive. In particular, those regarding the rear extensions give the option of rebuilding the extensions as permitted rather than total demolition."

25. It is right to note that the Statement of Facts put forward in respect of the appeal to the Inspector in each case had a "ground (c)" challenge. Each was drafted expressly on the basis that if the matters complained of occurred, they "do not constitute a breach of planning control." The detailed particulars given in relation to each were as follows:

111

"1. In so far as the Enforcement Notice alleges a breach of planning control in relation to the erection of single rear-storey extension, this was granted planning permission under reference 51709/B on 4 November 2005. Any differences between the permitted development and the extension are of no planning significance.

2. Neither (i) the increase in the depth of the extension or (ii) the increase in height/construction of a parapet wall on the roof of the rear extension materially affect the external appearance of the building as permitted and as such they do not constitute development: Section 55(2)(a)(ii) of the Town and Country Planning Act 1990 ("the Act").

3. In so far as the Notice alleges the alteration of the premises from 5 bedsits to form 10 flats the works carried out were (save in respect of the single-storey rear extension and the dormer extension to the roof alleged in the Enforcement Notice) works to the interior of the building only and do not constitute development: Section 55(2)(a)(i) of the Act.

4. If (which is denied) the Enforcement Notice alleges a material change of use by an increase of 5 to 10 flats, such change of use did not amount to development because:

4.1 The Council have granted a Certificate of Lawfulness, reference LDC/51709/A dated 13 June 2005 in respect of the use of the appeal premises as five bedsits;

4.2 The increase in the number of units was an intensification of the permitted use which did not change the character of the premises as a house in multiple occupation or its use for multiple households, and therefore did not constitute development.

5. The Enforcement Notice is fundamentally misconceived in not distinguishing between the appeal premises as one planning unit or as separate planning units, i.e. each individual flat/bedsitting room, and if the latter, in not identifying the relevant units specifically and by reference to a plan."

113

"1. The increase in the number of units was an intensification of the permitted use (as is acknowledged by the Council) but this intensification has not changed the character of the premises as a house in multiple occupation or its use for multiple households, and therefore did not constitute development.

2. In alleging an intensification from 5 bedsits and 2 flats to 6 flats and 4 bedsits, the Enforcement Notice is fundamentally misconceived in not distinguishing between the appeal premises as one planning unit or as separate planning units, i.e. each individual flat/bedsitting room, and if the latter, in not identifying the relevant units specifically and by reference to a plan.

3. In so far as the Notice purports to allege the carrying out of works to alter the premises from 5 bedsits and 2 flats to 6 flats and 4 bedsits, the works carried out were (save in respect of the ground/first floor rear extension) works to the interior of the building only and do not constitute development: Section 55(2)(a)(i) of the Act.

4. In so far as the Enforcement Notice alleges a breach of planning control in relation to the erection of a rear extension, this was granted planning permission under planning permission reference 45287/C dated 8 April 2004. Any differences between the permitted development and the extension are of no planning significance.

5. Neither (i) the increase in the depth of the extension or (ii) the increase in height/construction of a parapet wall on the roof of the rear extension as permitted by permission 45287/C materially affect the external appearance of the building and as such they do not constitute development: Section 55(2)(a)(ii) of the Town and Country Planning Act 1990 ("the Act").

6. In relation to the alleged erection of a first floor rear extension, this presumably relates to the upper part of the extension referred to in the previous paragraphs 4 and 5; the Appellant's submissions under those paragraphs apply equally to the first floor. In any event, the first floor rear extension was built exactly in accordance with the approved drawing, save for a flat roof instead of a pitched roof."

26. These formulations plainly put in issue the question in relation to each property of (a) whether what was in fact built, albeit not fully consistent with the approved drawings, was so inconsistent as to be of planning significance, (b) whether, for similar reasons, the increased dimensions of the extension constitute "development", (c) whether the internal alterations constituted "development" and (d) whether increasing the number of units was merely an intensification of the permitted use that did not change the character of the property as an HMO and in consequence did not constitute development.
27. Miss Clover tells me that arguments along the lines of the assertions made in the Statement of Facts were deployed before the Inspector and indeed evidence relating to the issues raised was given. I have no reason to doubt that that was so and indeed the way the Inspector expressed himself in relation to the "ground (c) appeals" (see paragraph 23 above) confirms that this was a matter placed squarely before him.
28. If any or all of the arguments advanced on the Appellant's behalf were right (and I express no view, one way or the other, about them), then the appeals would have been allowed and the enforcement notices would have been quashed. As it is, by reason of the approach to which I have referred above (at paragraph 23), the Inspector considered that "there [was] nothing remaining to be considered" on these issues and, accordingly, do not form any conclusion about them.
29. Before moving to consider the way the arguments on the appeal before me have been presented, it is important to see what the effect of this and other conclusions reached by the Inspector was on the overall outcome of the appeal. Although the effect of what he did was to remove from Appeals A and B the issue of the "use" of the properties, given the s. 78 appeals put forward by the Appellant the Inspector considered in detail the planning arguments concerning the use of each property for 10 units of accommodation. He introduced his consideration of these issues in two paragraphs of the Decision Letter which it may be helpful to set out in full:

"17. Each property comprises 10 units of accommodation and the s78 appeals in their entirety seek the retention of all of these units. In 111 there are 5 units on the ground floor (Units 1, 2, 3, 4 and 8), 3 on the first floor (Units 5, 6 and 7) and 2 on the second floor (Units 9 and 10). All have en-suite shower rooms with the exception of Unit 6 which relies on a shower room and WC adjacent on the landing. Unit 8 occupies the ground floor of the rear extension and the shower room for Unit 7 occupies the first floor of this extension. Units 9 and 10 have been created in the dormer extension which is also the subject of the enforcement notice.

18. In 113 there are 5 units on the ground floor (Units 1, 2, 3, 4 and 8), 3 on the first floor (Units 5, 6 and 7) and 2 on the second floor (Units 9 and 10). Units 2, 3 and 6 have no en-suite facilities and rely on a shared shower room and WCs on the first floor and Units 9 and 10 have a shared shower room/WC on the second floor. The other units have their own en-suite facilities. Unit 8 occupies the ground floor of the rear extension and the shower room for Unit 7 occupies the first floor of this extension. Unit 9 has been created in the roof space and Unit 10 is within a dormer extension permitted on 25 May 2001 but subject to a condition restricting the use (see Appeal C) which the Council assert is contravened."

30. He said that the main issues he had to consider in relation to these matters were –

"1) Whether the increase in the number of units of accommodation to 10 in each property has, and would continue, to cause demonstrable harm to the character of the area (Nauls Mill Conservation Area and the Spon End and Nauls Mill Area of Local Distinctiveness);

2) Whether the rear extensions (both properties) and the dormer roof addition at 111 preserve or enhance the character or appearance of the Nauls Mill Conservation Area;

3) The effect of the extensions on the living conditions of the occupiers of the appeal properties and the neighbouring occupiers of 109 and 115 Holyhead Road in terms of light, outlook and privacy."

31. I need not set out his detailed consideration of these matters, but he plainly considered them with great care. His conclusions should, however, be recorded.
32. In relation to the first issue he said this:

"38. Bringing these matters together, my conclusion on this issue is that the additional units of accommodation have not given rise to harm to the character of the area or resulted in any material detriment to highway safety, the free flow of traffic or the amenities of occupiers of adjacent dwellings. I also conclude that the character and appearance of the conservation area have been preserved. I therefore find that the development that has taken place in use terms is in accordance with Policies H1, H2, H6 and AM22 of the CDP and that the 3rd criterion of Policy BE9 (Development in Conservation Areas) is also satisfied as regards the use of each property as additional units of accommodation. I also conclude that there is no demonstrable conflict with the guidance in the Area of Local Distinctiveness SPG."

33. I will return to one particular sentence in that paragraph later (see paragraph 51) when dealing with one of Miss Clover's submissions.
34. In relation to the second issue he said this:

Rear extensions

"47. My conclusion on these aspects of the total development is that the combined effect of the extra length and incongruous height represents a form of development which would have a harmful impact on the character and appearance of the conservation area and the street scene. Permitting this development would not preserve the character or appearance of the conservation area and is consequently at odds with statute, national policy (as reflected in PPG15) and Policies BE2 and BE9 of the CDP."

Dormer extension at 111

"53. Taking all these factors into account, I conclude that the dormer has had a harmful effect on the townscape and has neither preserved nor enhanced the character or appearance of the conservation area. On the contrary, it has had a seriously damaging impact and is contrary to Policies BE2 and BE9 of the CDP and the relevant SPG. I also find that the suggested alteration would not adequately mitigate the harm I have identified."

35. I should record, in relation to the second issue, that the Inspector addressed it on the basis of what was originally constructed and not on the basis of an argument under ground (c) given that it was accepted that what had been built was "materially different from what was permitted and [did] not fall within the remit of the planning permissions." He made it clear also that he was dealing with the proposals in the planning applications submitted in 2009 to retain the extensions as built (which were refused by decisions dated 21 May 2009 (111) and 17 June 2009 (113)) and not the proposal that the extensions reduced in height by 5 courses of bricks that occurred in August/September 2009. Because it forms a feature of Miss Clover's challenge to the Inspector's approach I should record his reason for saying this:

"42. So the proposals before me are not the extensions as so reduced in height but the development that was first constructed. The deemed planning applications in respect of these extensions that flows from the ground (a) appeals against the enforcement notices are those described in the notices at the date they were served. The deemed applications are not for the extensions as reduced in height. The appellant is at liberty to make planning applications for what now exists but he has not done so. I appreciate that he has reduced the height of the parapet wall in order to reduce the bulk but procedurally I am required to deal with the developments on the basis of what existed when the planning applications were refused and the enforcement notices served. I will proceed on this basis."

36. I will return to the implications of this later (see paragraph 47).
37. In relation to issue 3 his conclusions can be summarised by saying that he did not find any very significant falling below the Building Research Establishment (BRE) guidelines in respect of daylight and sunlight, but in relation to the matter of outlook he considered that the walls of the extension at 113 as originally built had an overpowering impact on the ground floor windows in the rear of 111 and 115 due to their height and proximity. He concluded that this has been lessened by the reduction of the parapet walls and, as he put it, "may have rendered the impact in this respect acceptable" but went on to say that "these are not the schemes before me." In other words, he was, consistent with the position referred to in paragraph 35 above, simply looking at what was built before the 5 courses of bricks were removed.
38. His overall conclusions in relation to ground (a) and the s. 78 appeals were expressed as follows:

"60. I intend to allow the s78 appeals as they relate to Units 2 and 4 at 111 and Units 4 and 10 at 113. In view of my findings on the unacceptability of both rear extensions and the dormer extension in design terms and due to the impact on the light received by the window in the rear of 109 in respect of the rear extension at 111, I will dismiss the ground (a) and s78 appeals concerning the extensions. The knock-on effect is that I will also dismiss the s78 appeals concerning Units 8, 9 and 10 at 111 and Unit 8 at 113 as there is no permitted structures that they can occupy.

61. I have borne in mind that the appellant may wish to apply to retain the rear extensions as modified and if he obtains planning permission the powers conveyed by s180 of the Act will apply and the notices in the upheld form will cease to have effect is so far as they are inconsistent with these permissions. That is a matter for him to consider and for the Council to decide but it has a bearing on the period for compliance which I shall consider below under ground (g)…."

39. The net effect of these conclusions is that the additional units of accommodation would not conflict with planning policies so far as "use" is concerned and had they been comprised within an acceptable building in planning terms, the appeals would have been allowed. However, there were aspects of the built accommodation (in the sense of those aspects built since the original planning permissions were granted) that did offend planning policies and, for that reason, the appeals in relation to those units within that built accommodation were dismissed.

The criticisms made of the Inspector's approach

40. Miss Clover's essential argument is that by taking the course he did in relation to the defects in the enforcement notices, the Inspector failed or declined to address certain Grounds of Appeal that the Appellant was entitled to have considered. She says, in the first instance, that what the Inspector did was in effect to quash the enforcement notices in so far as they related to the "use" element of the Grounds upon which it was suggested that there had been a breach of planning control. This argument is best understood by considering the terms of Section 176. The relevant part reads as follows:

176(1) On an appeal under section 174 the Secretary of State may -

(a) correct any defect error or misdescription in the enforcement notice; or

(b) vary the terms of the enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.

(2) Where the Secretary of State determines to allow the appeal, he may quash the Notice.

…

41. Miss Clover draws attention to the fact that the Inspector said that he could not remedy the defect without injustice to the Appellant (see paragraph 17 above) and yet, she argues, he then purported to do so. Her argument is that the deletion of the "use" element of the case against the Appellant was so fundamental that it could not be embraced within the power to "correct" or "vary" the terms of the enforcement notices and that what the Inspector was doing was to "quash" this part of the notice. However, he could not do this, she argues, unless he allowed the appeal.
42. Mr Peter Goatley, who did not appear at the Inquiry but who represented the Secretary of State before me, drew attention to the fact that paragraph 11 of the Inspector's decision (see paragraph 17 above) demonstrated clearly that the Inspector was focusing solely on those parts of the enforcement notices that dealt with the "use" element and, accordingly, there was no intention on his part to "quash" the notice in pursuance of the power given by Section 176(2), merely to delete the "use" element. All that he was doing, as he was entitled to do if no injustice would be caused, was to correct a defect in the notice, or to vary it, by deletion of the offending words. Mr Goatley submitted that this was well within the ambit of what the Inspector was entitled to do and he relied upon the approach reflected in the case of Burner, etc v Secretary of State for the Environment [1983] JPL 459, where the narrowing of the ambit of an allegation was considered appropriate.
43. Miss Clover, relying upon Wealden District Council v Secretary of State for the Environment [1983] JPL 234, submitted that in order to satisfy the description "variation" there had to be a "sufficient continuity of identity between the notice before and after the change" to the notice. She submitted that the wholesale deletion of the "use" element resulted in a changed identity for the notices.
44. For my part, and consistent with the authorities to which I have been referred, I would hold that too restrictive an interpretation on the word "variation" should not be imposed. A variation can plainly be achieved by deletion. However, it seems to me that what constitutes a variation will always be a matter of fact and degree and very much dependent upon the facts of the individual case. What ultimately governs the whole issue is whether, to use a neutral expression, any "change or alteration" to the notice will cause injustice to any party. Whilst one can see that section 176 might well be (and probably frequently is) interpreted by asking (i) whether what is proposed is a correction or variation and then (ii) whether it would cause an injustice, the reality in many cases will be that the second issue will determine, or at the very least inform significantly, the first.
45. If forced to decide whether what the Inspector did was within the expression "variation" I would hold that it was. Deleting something involves a variation of that which was there before. However, the more significant issue is the qualitative judgment of whether, in the circumstances of this case, it could lead to an injustice.
46. The Inspector said that it would not cause an injustice to any party - including, of course, the Appellant. I am quite sure that he had in mind what he would have perceived as the "natural justice" requirement that the Appellant should not be faced with an unclear allegation in an important appeal from his point of view and from the point of view of the planning status of the properties he owned. If that was the sole source of any possible injustice, then I would respectfully agree with the Inspector and regard his decision as entirely correct.
47. However, Miss Clover's argument is that by taking this course, and then by holding that as a result all the grounds other than ground (a) did not require consideration, he deprived the Appellant of findings and conclusions that might have ended all further argument. If, for example, the Inspector had gone on to consider the ground (c) arguments in relation to each property (see paragraph 25 above), he might have concluded that the Appellant had never required planning permission for anything that had been done to the properties and, accordingly, the enforcement notices should be quashed. Equally, if, for example, he had gone on to consider the ground (f) appeal in relation to the built element, he might have concluded that the removal of the 5 brick courses was sufficient to remedy the relevant breaches of planning control with the result that the appeal could be allowed. Whilst I have used grounds (c) and (f) as examples – and they are probably the most significant matters for consideration – it is possible that there are some ground (b) matters that could also have fallen for consideration.
48. Mr Goatley's response to these arguments was, in relation to the ground (c) issue, that it would have been open to the Appellant to seek a Lawful Development Certificate and he had not done so. That, of course, is correct, but it was open to the Appellant to raise the issue of whether there had been a breach of planning control before the Inspector and it does not seem to me to be appropriate to hold that consideration against him. No such point was apparently taken at the Inquiry. As to the ground (f) issue, Mr Goatley pointed to various comments that the Inspector made in the decision letter which suggested that he had considered at least elements of the issue. Again, that may be so, but the Inspector said expressly that he was not going to consider the matter because of the alteration he had made to the notices (see paragraph 35 above) and I do not think I could, or should, go behind that.
49. Mr Goatley did concede that had the planning authority drafted the notices in a way that did not offend the requirement of being clear and unambiguous and, for example, two separate notices, one alleging breach of the operational matters and another alleging the breach of the "use" matters, had been formulated and considered at the Inquiry, the Appellant would have been entitled to consideration of all the grounds of appeal that went to answer the allegations made, including, for example, the ground (c) issues raised. That, as it seems to me, represents the essential basis of the answer to this appeal. The Appellant had, as I have indicated, prepared for the appeal before the Inspector on the basis that all relevant issues would be before him for adjudication and decision and all appropriate evidence was deployed. That did involve putting forward alternative arguments, but that is the nature of preparing for an Inquiry in that way and there is nothing wrong in principle with doing so. Indeed in many respects there is every good reason for taking such a course. It saves cost, time and delay and enables everyone involved to address all relevant issues.
50. As it is, the Appellant does not know what the Secretary of State's position is in regard to the grounds of appeal he wished to advance because the Secretary of State's Inspector decided that it was not necessary to consider them. The effect is that some of the units are now adjudged to be "unlawful" by the Inspector, without consideration having been given to the Appellant's arguments in support of the proposition that all units were lawful and did not require planning permission.
51. There is one further consequential area of uncertainty. In paragraph 38 of the Decision Letter the Inspector, having reviewed the ground (a) arguments, found "that the development that has taken place in use terms is in accordance" with the relevant planning policies. (My emphasis). If that is a finding that everything that was done constituted "development" within the terms of the Act, then Miss Clover would be entitled to complain that it does not follow any reasoned analysis for the rejection of all the Appellant's arguments to the contrary. I think Mr Goatley is probably right to say that this was merely a word used to embrace the proposition that various things had been done on or in connection with the properties and did not represent a true finding that there had been "development" in the planning sense. However, it was, perhaps, an unfortunate expression to use in the circumstances and adds to the uncertainty of the true outcome of the inquiry.
52. In relation to the course adopted by the Inspector, had Miss Clover conceded that this was the right approach to adopt, then, of course, the Appellant may not have been in a position to complain. However, I understand that the issue was not canvassed as such and it had been her understanding that the Inspector would have gone on to consider all issues.
53. It seems to me that the net effect of what has occurred is that the Appellant was entitled to complain about the enforcement notices (as indeed the Inspector held), but having done so perfectly correctly and successfully, he has found himself deprived of consideration by the Inspector of some of his primary grounds of appeal. I have no doubt that the Inspector did not intend that the Appellant should be deprived unfairly of that opportunity and saw the course he took as simply the logical extension of the decision he had made about the enforcement notices. However, the result does seem to me not to have been just in the widest sense of that term, embracing as it does the need to deal with issues expeditiously and economically. The statutory scheme within which these matters are considered should not inhibit that objective. Whilst it is possible that all these matters could be addressed in other ways (for example, by the Appellant making fresh applications to the planning authority and/or the planning authority issuing fresh enforcement notices), it seems to me to be unfair and burdensome on the Appellant in terms of time, expense and delay to deal with matters in that way given that everything relevant was before the Inspector.

Conclusion

54. In my judgment, the Appellant's essential arguments are well-founded and he is entitled to a remission of this matter to the Secretary of State for re-determination in light of this judgment.
55. I will invite submissions on the precise form of the order and further submissions on the judicial review application if matters cannot be agreed.




Ruling on application for judicial review of costs decision

Mr Justice Foskett:

1. I have reviewed the Decision Letter on costs, the judicial review application in respect of it and the various written arguments with which I have been supplied, particularly Mr Goatley's submissions of 14 December 2010, Miss Clover's response of 16 December 2010 and the e-mail of Mr Goatley of 17 December.
2. In view of the time constraints imposed by endeavouring to deal with this matter before I complete my period of sitting in Birmingham, I will, I trust, be forgiven for dealing with the matter briefly.
3. I recognise the normal parameters within which this court is required to consider the discretionary process of considering the issue of costs decided by an Inspector. Whilst logically, if I had dismissed the appeal before me, it would have been open to me to quash the Inspector's decision on costs because it was a free-standing issue, the likelihood is that I would have been persuaded that it was within the general ambit of the wide discretion that an Inspector possesses when considering such an issue. However, I have allowed the appeal against his decision on the substantive matters and I note that one factor he appears to have taken into account on the issue of costs (see paragraphs 11 and 12 of the Decision Letter on costs) was that he felt that he had the power to modify the offending Enforcement Notices in a way that did not cause injustice. I have differed from him on that issue for the reasons given in the substantive judgment.
4. It seems to me, therefore, that, because of the result of the appeal before me, the Inspector has to be treated as having taken into account as a material consideration something that now has to be left out of the equation.
5. On that basis, it seems to me that I should grant permission to apply for judicial review and quash the decision on costs with a view to the matter being remitted to the Secretary of State for reconsideration. I should, for the avoidance of doubt, say that, whilst I have taken the course I have on the fairly narrow basis that I have mentioned in paragraphs 3 and 4 above, the setting aside of the order means that the matter of costs should be looked at entirely afresh with all relevant matters being considered. I do not intend the reconsideration of the issue of costs to be constrained by anything said in this ruling.
6. I would invite the parties to agree a form of order that gives effect to this decision.