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, WC2A 2LL
		14/11/2013

Mr Justice Stewart :

Introduction

1. Dr Makanjuola owns a residential property at 15 Salters Road, Walthamstow, London E17 3PQ which he acquired in 1994. He carried out three stages of development to the property and in May 2011 Waltham Forest London Borough Council ("Waltham") served an Enforcement Notice alleging a breach of planning control by the construction/use of a building as a separate detached dwelling house.
2. Dr Makanjuola appeals a decision of the Secretary of State for Communities and Local Government ("The SSCLG") based on a decision letter given by an Inspector and issued on 14 May 2012 after a hearing which took place on 1 May 2012.
3. The point to be determined in this appeal is whether the Inspector erred in law by holding that Dr Makanjuola should "demolish the single storey dwelling house in its entirety." (See paragraph 19 below)

Background Facts

4. In about 1995 the property included an outbuilding containing garages used for storage. This was converted at about that time to provide ancillary accommodation to the main dwelling. This has been referred to as "the outbuilding conversion" "stage 1". The Inspector's finding as to this conversion was "on the balance of probability the original outbuilding was converted to residential use in about 1995 and may have undergone some repairs after that". (Paragraph 40).
5. In about 2004 a separate triple carport building was erected and subsequently converted to residential use. This is referred to as "The Carport Development" "Stage 2". The Inspector's finding on this was "the triple garage was erected sometime during or after 2003 and adapted for residential use in about 2004." (Paragraph 40).
6. Between 2006 and 2008 there was further development, this being the consolidation of two existing outbuildings and the erection of a "warm room" as part of the consolidated building. The Inspector said as to this development "the link which now contains a bedroom, and the warm room extension, which contains an en-suite bathroom and bedroom, were both erected after September 2006 and probably not before summer 2008 since neither is apparent on the 2008 aerial photograph, which shows all the trees in leaf. Consequently it cannot have been substantially completed before the relevant dates. In addition further alterations to the carport structure occurred and this included at least the provision of an extensive new kitchen." (Paragraph 40).
7. The Inspector summarised the development in paragraph 39:

"having regard to the above information I find that the development occurred in 3 stages. Namely, the conversion of the original outbuilding to provide some ancillary accommodation; the erection of the triple carport building which was adapted for residential use; and the erection of the warm room and link…."

The Lawfulness of the Stages of Development.

8. The central issue in this case is what findings the Inspector made. The law, though not capable of being stated very simply, is in fact uncontroversial.

The Inspector said this at paragraph 59 (dealing with ground (f) ie. over- enforcement) as to Stages 1 and 2:-

"The original outbuilding was originally used for garages and storage. It was adapted to provide some ancillary space for use with the dwelling house (No. 15) as such. That would not have been in breach of planning control. The erection of the triple carport for use as such would not have been in breach of planning control as the Council advised in 1994. However, that building was adapted first, according to the Appellant, to provide further ancillary domestic accommodation which again would not have been a material change of use."

9. In considering the Inspector's findings I have to have regard to the fact that he was at various stages dealing with different grounds of appeal. In paragraphs 39 and 40 cited above he was considering ground (a) i.e. the dates of development.

As to stage 3 there is no dispute but that he found that this was unlawful development. His finding was encapsulated in paragraphs 41, 42 and 59 in the following terms:

"41. The third stage of the development materially changed the situation in terms of planning control. Prior to that the accommodation had been erected for purposes incidental to the use of the dwelling house (No. 15) and later adapted to residential use. It contained a kitchenette, but that may not have been sufficiently equipped to prepare full meals on a regular basis. It now contained a shower room, but case law indicates that such facilities, are themselves, are not necessarily sufficient to conclude that the building comprises a separate dwelling house. The other habitable accommodation, whilst used by members of the family, was modest in size and the use was merely associated with the main dwelling house.

42. The development comprising the erection of link and warm room extensions was for the sole purpose of adding two further bedrooms, an en-suite bathroom. In addition, a considerably larger and better equipped kitchen was installed. All these works resulted, in my judgment, in the creation of a substantial three bedroom dwelling which is capable of being occupied by anyone and entirely independently of the original dwelling…

59. …It was then further altered and extended to a point which I have found to create a separate dwelling house. The entire building, except for the original outbuilding, now used only for domestic storage, was used as and is a separate dwelling house."

Relevant Statutory Material

10. I have set out relevant statutory material in an Appendix to this judgment.

The Appeal to the Inspector: Sections 174 (2) (a), (c) and (d) of the 1990 Act

11. The live grounds of appeal for the Inspector were under section 174 of the Town and Country Planning Act 1990 ("The 1990 Act") subsections (a), (c), (d) and (f).
12. The Inspector considered Ground (a) in paragraph 43 to 57 of his judgment and, in short, held that that ground failed because the appeal development, even if it were a sustainable development, would not accord with the objectives of the development plan in terms of design quality and its impact upon the amenity of neighbours and the safety of its occupants and highway users.
13. In respect of Ground (c) (no breach of planning control) he rejected that ground for reasons given in paragraphs 14 – 25 of his decision. As reflected later in paragraphs 39 – 42 and paragraph 59 (these being already set out above) he said in paragraphs 23 and 24:-

"23. At some stage after the construction of the triple car port and its adaptation or reconstruction, the situation altered. Precisely when that occurred is not material because the link extension and the addition of the warm room extension, together with other internal alterations, materially altered matters in terms of planning control."

"24. The development changed at that point from outbuildings comprising habitable space together with a shower room and basic kitchen facilities, into a single substantial building containing three bedrooms, a shower room, an en-suite bathroom, large kitchen, sitting room and entrance lobby, together with garages or storage space. This adaptation of existing buildings and their extension created a separate dwelling house. That is materially different from ancillary or residential use of outbuildings within the curtilage of a dwelling house. Accordingly it constitutes a breach of planning control as alleged and the appeal and the Ground (c) fails."

14. In relation to Ground (d), the findings of the dates of development by the Inspector are not challenged. As a result of his finding that stage 3 was probably not completed before summer 2008, he rejected Ground (d) in paragraph 42 of his decision stating:

"The development comprising the erection of the link and warm room extensions was for the sole purpose of adding two further bedrooms, an en-suite bathroom. In addition a considerably larger and better equipped kitchen was installed. All these works resulted, in my judgment, in the creation of a substantial three bedroom dwelling which is capable of being occupied by anyone and entirely independent of the original dwelling. I find that, on the balance of probability, that dwelling house was not substantially completed or in use as such more than four years before the Enforcement Notice was issued. Therefore the development cannot benefit from the provisions of section 171B(1) or (2) of the Act and is not immune from enforcement action. Accordingly, the appeal under Ground (d) must fail."

The Appeal to the Inspector: Section 174(2)(f) of the 1990 Act

15. Dr Makanjuola also appealed under Ground (f). This is set out in the Appendix. It provides as a ground of appeal:

"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."

16. The breach of planning control alleged in the original Enforcement Notice was described as "the construction of a self contained single storey detached dwelling house to the rear of 15 Salters Road, and the use of the single storey detached dwelling house as a dwelling house."
17. The requirements of the notice were:

(1) Cease the use of the single storey dwelling house

(2) Demolish the single storey dwelling house in its entirety

(3) Remove all debris, fixtures and fittings, rubble and general detritus resulting from the removal of the single storey dwelling house from the land.

18. The Inspector's decision was to correct the Enforcement Notice by substituting the following:

"Without planning permission, the carrying out of building operations comprising the consolidation of the triple carport with an outbuilding, the conversion of the building to residential accommodation, the extension of the building to create a new self-contained single storey detached dwelling house to the rear of 15 Salters Road."

19. The Inspector also deleted requirement (2) and substituted:

"(2) Demolish the single storey dwelling house in its entirety – this comprises the former triple carport and its extensions to the south and east sides, but not the original outbuilding which is currently in use as garages or domestic storage."

20. In his decision at paragraph 58 the Inspector said:

"The Appellant considers that the building is permitted development and that the change of use to a living accommodation is immune from enforcement action. On that basis he considers the requirements of the notice to be excessive. However, I have found that even if the building had been permitted development at some stage, it is now a separate dwelling house and that use is not immune from enforcement action. This leaves consideration of whether it is necessary to require demolition of the building in its entirety to remedy the breach of planning control. "

"60. The Council contend that the appeal building is now a separate planning unit from the original dwelling house (No 15) and I agree. It is also established law that any operational development which enabled an unlawful use can be required to be removed (for this the Inspector cited by a footnote the case of Somak Travel Ltd v SSE and Brent LB (1988) 55 P & CR 250). Also, if the whole building was used unlawfully as a dwelling house, then the Council are correct in enforcing against the whole structure and I agree that under enforcement would be in appropriate because any of the building so used which was not removed would benefit from the provisions of section 173(11) of the Act, as amended and could, therefore, remain as a separate dwelling house."

21. In paragraph 61 and 62 he said, however, that his inspection had revealed that the original building was connected with the remainder of the separate dwelling house, it did not appear to be used as an integral part of it and was used wholly for domestic storage and that that use may well remain associated with the original dwelling house. He said there was no substantial evidence which suggested that it had ever been used for residential accommodation in breach of planning control. Therefore it could only remain as a building ancillary to the original dwelling house and therefore the requirements of the Notice seeking demolition of the original building exceeded what was necessary to remedy the breach of planning controls. To that limited extent he allowed the appeal under Ground (f) and amended the notice (requirement 2 as above i.e. exempting the original outbuilding).

The Appellant's Main Ground of Appeal.

22. The appeal is brought under section 289 of the 1990 Act.
23. There is no dispute between the parties as to the central propositions to be derived from the cases. Those cases are:

Murfitt v Secretary of State for the Environment (1980) 40 P and CR 254

Somak Travel v Secretary of State for the Environment (1988) 55 P and CR 250

Bowring v SSCLG [2013] EWHC 1115 (Admin)

The dispute between the parties is as to the application of the principles to the facts of this case.

24. In Bowring Mr Clive Lewis QC (as he then was) said at (16):

"…Where an Enforcement Notice is served alleging the making of a material change of use of land, and the notice requires that certain work be removed, those works must have been integral to or part and parcel of the making of the material change of use. On the facts of cases such as at present, it will not be sufficient if the works are integral to or part and parcel of the present unauthorised use of land if the works had been undertaken for a different, and lawful use and could be used for that other, lawful use even if the unauthorised use ceased."

It is of interest to note that on the facts of Bowring:-

(i) The kitchen(s) ordered to be removed were installed for some other, lawful use before the material change of use was made. They would not have involved a breach of planning control, as they would not have been installed for the making of a material change of use.

(ii) It was not clear on which date the two additional kitchens were installed and whether they were installed simply to enable the house to be used as a house in multiple occupation or whether the installation of the two additional kitchens was in fact a precursor to the conversion of the house into three self contained flats.

25. In the Somak Travel Ltd case Stuart-Smith J (as he then was) said at page 256:

"The test laid down in (Murfitt v Secretary of State for the Environment and East Cambridgeshire District Council) by Stephen Brown LJ that the operational activity should be part and parcel of the material change of use or integral to it, is one which seems to me to be satisfied in this case. It must, of course, be a question of fact in each case, but there seems to me to be plainly material upon which the Inspector could come to the conclusion, as he clearly did, that it was integral to it."

If one uses the words of Mr Lewis QC in paragraph 16 of Bowring, the issue between the parties would be: had the works in stage 2 "been undertaken for a different, and lawful, use and could (they) be used for that other, lawful use even if the unauthorised use ceased"?

26. It is clear that if (i) works are integral to or part and parcel of an unauthorised use of land and (ii) had not been undertaken for different and lawful use and could not be used for that other lawful use even if the unauthorised use ceased – then an Enforcement Notice may be directed at the entirety of the development, even if part had been completed more than four years previously: see Sage v Secretary of State for the Environment Transport and Regions [2003] 1 WLR 983; Ewen Developments Limited v Secretary of State for the Environment [1980] JPL 404.
27. The following further points are instructive in this case:

(i) Section 173(4) of the 1990 Act permits an Enforcement Notice to achieve the purpose of "remedying the breach…by restoring the land to its condition before the breach took place."

(ii) It is important to identify the breach. In the Sage case it was said "if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful." (23)

(iii) The intentions of a person carrying out development at various stages in the history are not relevant. "The character and purpose of the structure falls to be assessed by examining its physical and design features." – Sage (14).

28. The Appellant concedes that, if the Inspector had found that there was one single act of development starting at stage 2, then enforcement could be against both stage 2 and stage 3 as the Inspector determined. The Respondent says that the Inspector did find that. I accept that one has to be careful about putting a gloss on the statutory language but I find that the words in paragraph 16 of Bowring are helpful at the very least as a cross check in determining what a single act of development constitutes. Ultimately, however, the matter before me is as to whether the Inspector found that stages 2 and 3 were indeed one single act of development and analogous to the position in Sage.
29. The SSCLG submits that the breach was the incremental carrying out of building operations to construct a single story dwelling house and that the Inspector so found. The SSCLG therefore says that the notice could properly require the removal of the whole dwelling house structure. In my judgment that is wrong. On my reading of the decision letter, the Inspector in effect found that stage 2 works had been undertaken for a different and lawful use. He found (paragraphs 23 – 24) that the development changed at some stage after the construction of the triple carport and its adaptation or reconstruction. Also that "development changed at that point from outbuildings comprising habitable space together with a shower room and basic kitchen facilities, into a single substantial building…this adaptation of existing buildings and their extension created a separate dwelling house." These words clearly indicate that the Inspector found that the outbuildings (which included the car port as adapted or reconstructed) subsequently changed. This is not a finding that prior to this stage the structure was a separate dwelling house in the course of construction. In my opinion, albeit in relation to the appeal under ground (d), this is further made clear in paragraphs 41 and 42, especially by the following words:

"41. The third stage of the development materially changed the situation in terms of planning controls. Prior to that the accommodation had been erected for purposes incidental to the use of the dwelling house (No 15) and later adapted to residential use."

30. Under Ground (f) the words in paragraph 59 reflect the same findings and it is noteworthy that in paragraph 58 the Inspector said "I have found that even if the building had been permitted development at some stage, it is now a separate dwelling house."
31. I have set out in paragraphs 20 and 21 above the contents of paragraphs 60 – 62 of the decision letter. I believe that the Inspector fell into error when he said "it is also established law that any operational development which enabled an unlawful use can be required to be removed." He cited the Somak Travel case as authority for this. Depending on the circumstances of a case, this statement might survive (see for example Independent Pensions Management Limited v Secretary of State for the Communities [2010] EWHC 3090 (Admin) at (19 – 20). Nevertheless the question which the Inspector should have been asking himself was what was comprised in the development? It appears to me clear from the preceding parts of his decision that the development which was unlawful was stage 3.
32. By reference to the cross-check question from paragraph 16 of Bowring, the works at stage 2 were undertaken for a different and lawful use. The Inspector so found. Had he not done so then, given his description of the history of this site, it would have been difficult to establish the materials upon which he had acted in so finding.
33. I therefore determine that the Inspector found that stages 1 and 2 were lawful. However it is accepted that this Court cannot resolve precisely what is required to remedy the breach contained in the stage 3 development and that this matter will have to be remitted for decision by a fresh Inspector.
34. In those circumstances I allow the appeal and quash the appeal decision. I declare that stage 2 of the development is immune from enforcement action.

Ground 2: Planning Permission

35. The Appellant seeks further relief. He asks the court to direct that the appeal be remitted to the SSCLG for reconsideration of the ground (a) appeal on the footing that only stage 3 requires planning permission. The Appellant's argument is that the Inspector's reasoning on this question was tainted by the error with which I have dealt above. The Appellant says that the Inspector approached the issue of planning permission under Ground (a) on the basis that he was entitled to require demolition of the "single dwelling house in its entirety" saving only the original outbuildings. Therefore in considering the impact of the development he compared the circumstance in which the current building was retained in its entirety with one in which all but the original outbuilding would be demolished. The Claimant submits that, absent the error, the Inspector would have approached this issue on the footing that only stage 3 required planning permission, that the impact of granting planning permission would therefore be less and that his decision may have been different. From Simplex G.E. (Holdings) v Secretary of State for the Environment 57 P and CR 306@ 327 it is clear that for this relief to be refused "the Minister necessarily would still have made the same decision."
36. The Appellant places particular reliance on the Inspector's findings as to the character and appearance of the building (paragraphs 49 – 50).
37. It is correct that in paragraphs 49 and 50 the Inspector criticised the character and appearance of the building. However central findings of the Inspector are also to be found under "Issue (b): Amenity of Neighbours" and "Issue (c): Access and Highway Safety." Thus in paragraph 53 the Inspector said:

"The Inspector who determined the previous appeal for a detached dwelling on the site concluded that a disturbance "would be seriously detrimental to the living conditions of the occupiers of both 13 and 15 Salters Road". In considering this development I must bear in mind the possibility that the occupants of the appeal building need not be family members related to the occupants of No 15, or that No 13 may be occupied by others. Taking an objective view I agree with the Council and the previous Inspector, for the reasons he set out, that the appeal development could give rise to undue noise and disturbance for neighbours arising from use of the access. It would, therefore, not comply with policy CS13(A) or DM33(d)."

38. In paragraph 55, he noted access issues and concluded:

"All these considerations lead me to agree with the Council that the access is inadequate for the purpose of serving a separate dwelling house on the appeal site. Accordingly, it would not accord with policy DM33(h) or generally applied standards for highway safety."

39. In his conclusion on Ground (a) he relied not only on design quality but also on "its impact upon the amenity of neighbours and the safety of its occupants and highway users." (para 57)
40. I take the view that it is clear that permission would necessarily have been refused for the reasons of the amenity of neighbours and access and highway safety and I therefore dismiss Ground 2 and refuse the relief sought namely remitting the appeal for reconsideration of Ground (a). This is notwithstanding the Appellant's submission that I should exercise a discretion to remit as the matter had to be remitted in any event.

APPENDIX

Town and Country Planning Act 1990 c. 8

55.— Meaning of "development" and "new development".

(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

…………………..

(d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;

57 Planning permission required for development

(1)Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.

171A Expressions used in connection with enforcement.

(1)For the purposes of this Act—

(a)carrying out development without the required planning permission; or

(b)…………..

constitutes a breach of planning control.

171B.— Time limits.

(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.

172.— Issue of enforcement notice.

(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.— Contents and effect of notice.

(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 section 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.

……………….

(11) Where—

(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b) all the requirements of the notice have been complied with,

then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.

174.— Appeal against enforcement notice.

(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—

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

……………………

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) 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;

……………………

(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;

289.— Appeals to High Court relating to enforcement notices and notices under s. 207.

(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.