England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th December 2014

MR JUSTICE GILBART :

1. Leave to appeal in this case under s 289 Town and Country Planning Act 1990 ("TCPA 1990") was granted by Judge Ockleton sitting as a deputy High Court Judge. It concerns an enforcement notice served on 21st February 2013 under section 172 TCPA 1990 in the following terms:

"Schedule 1: Land or premises affected

650 North Circular Road Neasden London NW2 7QJ

Schedule 2: The Alleged Breach of Planning Control

Without planning permission, the erection of a dwelling in

the rear garden of the premises

Schedule 3: Reasons for issuing the Notice

It appears to the Council that the unauthorised development took place within the last 4 years

The dwelling, by virtue of its scale and size of floor area, is not incidental to the enjoyment of the dwelling house and is therefore out of keeping with the area……

The dwelling forms a separate residential unit of accommodation in the rear garden of the premises and results in a substandard form of accommodation, which is not incidental to the enjoyment of the dwelling house. It is therefore out of keeping with the area……..

The dwelling, by virtue of its excessive size, height and close proximity to the side and rear boundaries, appears as an obtrusive and overbearing feature, almost spanning the full width of the garden at a height in excess of 2.5 m. This is disproportionately large and is detrimental to the visual amenities of the neighbouring properties and the locality………..

Schedule 4

What you are required to do to remedy the breach

of planning control- s 173(4)(A)

Demolish the dwelling in the rear garden of the premises, remove all items and debris arising from that demolition and remove all materials associated with the unauthorised development from the premises.

Schedule 5: Time for Compliance

3 months after this Notice takes effect

2. The building in question lies at one end of the rear garden of Number 650, adjacent to the rear boundary, which abuts a service road which runs along the rear of the house and of its neighbours.
3. The Appellant entered an appeal under section 174(2) of TCPA 1990. That sets out a number of grounds which can be argued, including

"(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;

(b) that those matters have not occurred;

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

(d) ……………………………

(e) …………………………….

(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;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."

4. The Appellant appealed on one ground only, namely (b). In the Appeal form, the Appellant stated that no dwelling had been erected. She said that the only building was a garage, which was bought with the property in 2002, and which had been cleaned out and "refurbished." She also described how she and her family wished to increase security there so as to avoid invasion of their private space. It was also argued that any works were conducted internally, and stated that the building was no wider than before.
5. No fee was paid by the Appellant in respect of a ground (a) appeal. The appeal was dealt with by written representations.
6. The Appellant put in a statement. It referred to difficulties her family and their neighbours had experienced with fly tipping in the rear service road, but also to trespassers using the garage to take drugs. She described how the family refurbished the building, and turned it into a small self contained bedroom.
7. The Planning Authority stated that

i) A site visit on 18th June 2012 revealed that the building contained a kitchen and bathroom, and a person in the building said that it was a self contained flat;

ii) Photographs showed new external brickwork and windows and doors;

iii) No response was received to a planning contravention notice;

iv) Comparison of aerial photographs showed that the building on site is larger than that existing up to at least 2010, by approaching 25% (36 sq metres as opposed to 29 sq metres). The former pitched roof has been replaced by a flat roof;

v) An access had been made to the rear alleyway, and a fence installed which blocks access to the main house;

vi) The effect of what had happened was that a garage had been replaced by a self contained dwelling;

vii) As the building exceeded 2.5 metres in height the works required planning permission.

8. In response, the Appellant put in another statement. She said that the work had been carried out in 2010. She went on

" we did replace the pitched roof, which was very old and leaking. We replaced it with a flat brick roof, which was part of our refurbishment, the purpose of which was to restore the whole garage to good repair."

9. She contended that the "fence" blocking the entrance to the main house was not a fence but a wooden door. She did not accept the point concerning the height of 2.5 metres.
10. To pause there, there was thus agreement that there had been external works, and there was agreement that the building was being used residentially.
11. Before turning to the decision letter, it is necessary to consider whether the works in question needed planning permission. By section 55(1)-(2) TCPA 1990 (as amended)

" Meaning of "development" and "new development".E+W

(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…………operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

(1A)For the purposes of this Act "building operations" includes—

(a) demolition of buildings;

(b) rebuilding;

(c) structural alterations of or additions to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder.

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

(a) the carrying out for the maintenance, improvement or other alteration of any building of works which—

(i) affect only the interior of the building, or

(ii) do not materially affect the external appearance of the building,

and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground."

12. Section 57 deals with the need for planning permission

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

13. Planning permission may be granted by a Development Order (see section 59 TCPA 1990). The relevant order here is the Town and Country Planning (General Permitted Development) Order 1995 (as amended) (the "GPDO"). By Class E of Part 1, the provision within the curtilage of a dwellinghouse of a building, or its maintenance, improvement or other alteration, is permitted unless any part of the building would be within 2 metres of the boundary of the curtilage of the dwellinghouse and exceed 2.5 metres in height above the surface of the adjacent ground. There are different provisions relating to the maintenance or alteration of the dwelling house itself.
14. It follows that unless the works to this building fell within the permitted development rights conferred by the GPDO, the works to the roof and exterior required planning permission, as they constituted building operations within the meaning of subsections 55(1) and (1A), and did affect the external appearance.
15. The Inspector's report of 14th August 2013 is nothing if not brief, consisting of one introductory paragraph and three others. Having reminded himself that there is no definition of a dwelling in the TCPA 1990, he referred to Gravesham BC v Secretary of State for the Environment and O'Brien [1983] JPL 306 as stating that the distinctive character of a dwellinghouse was its ability to afford, to those who used it, the facilities required for day to day existence. He then recorded what he had seen on the site inspection, and concluded that it was a fully self contained residential unit with its own independent entrance door off a rear shared private access road. In his final paragraph he said this

" I understand that some of the original garage has been retained in the present building but the up-and-over metal door has been blocked up so the premises can no longer be used for garaging vehicles by the occupiers of the main house…..In addition it may well be that the building has only been occupied by other family members who live overseas. Nevertheless I consider that cumulatively the various facilities set out in the preceding paragraph provide the wherewithal for day to day independent domestic existence as set out in Gravesham. Accordingly I am satisfied that the development alleged in the notice had taken place as a matter of fact and the appeals on ground (b) fail."

16. Mr Paget submits that the Inspector

i) has never grappled with the question of what operations were carried out (which of course affects whether they were unlawful) , and

ii) has not considered whether some steps short of complete demolition would suffice to remedy the breach of planning control.

17. Mr Byass submits that

i) the Inspector has dealt with the first issue by implication;

ii) as the Appellant conceded that there had been external alterations and the replacement of the pitched by a flat roof, it was common ground that building works had taken place which were unlawful if the GPDO exception applied;

iii) the Inspector was not required to search around for solutions to the problem of what to do with the building.

18. The decision letter is thus concerned not with whether there have been unlawful building operations, but with whether the building was being used for residential purposes. If the building operations were lawful, then it by no means follows that there had been a material change of use, because the planning unit may well have remained unaltered, and this Enforcement Notice did not allege an unauthorised material change of use. It follows that the nature of the building operations and the GPDO question were a fundamental issue. On the other hand, if the operations were unlawful, then the question of the change of use is not relevant to the issue of whether a breach of planning control is made out, although it may be relevant to the description of the development as a "dwelling." Even then there is still a question as to whether or not there had been a new planning unit created.
19. Mr Byass drew my attention to what the Appellant had said in her statement before the inquiry. There can be no doubt that there had been external works. It follows that the critical issue was whether the building fell outside the scope of the GPDO on account of the height issue and the relationship to the curtilage boundary. The Inspector never addressed that point. Now it may be that he had assumed it, or took it that no one could disagree, but the fact is that he never addressed it, and it was actually in issue.
20. As appears from S Bucks DC v Porter (No 2) [2004] 1 WLR 1953 @36 per Lord Brown of Eaton-under-Heywood

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

21. To my mind this decision letter fails to meet the tests set. Now it could well be the case that a sentence or two would have sufficed to deal with this matter, but it is not for the Court to read in passages into Decision Letters to bring them up to the required standard.
22. As to Mr Paget's second ground, I am not persuaded by it. This Appellant had not argued that the requirements of the notice were excessive, and had not asked that planning permission be granted. If the allegation that this was a dwelling was made out, then the works executed to change the external appearance and the roof were unlawful, and what had been a dilapidated garage had been turned into a residential unit. I do not consider that the Inspector was obliged to find some alternative way of the Appellant's case being put; see Tapecrown Ltd v First Secretary of State [2007] 2 P and CR 7. Here, the planning authority objected to the effect of what it said was a larger building on the area. That was not controverted in any meaningful way by the Appellant.
23. There was some suggestion before me that the Inspector was required to let what had existed before remain, as per Mansi v Elstree Rural District Council (1965) 16 P&CR 153. But the so called Mansi doctrine applies to the retention of use rights, not the retention of buildings erected or altered in breach of planning control.
24. This appeal is therefore allowed on the first ground only. The matter is remitted to the Secretary of State for redetermination.
25. Judge Ockleton originally stayed the hearing of this case to see if any accommodation could be reached. It was not. I respectfully suggest that that was unlikely to have reached a solution. If the matter is remitted the Appellant would be well advised to take advice concerning the pleading of other grounds of appeal, or concerning the making of a planning application, so that if the alleged breach is proved, consideration can be given to the retention of some or all of the building in question. This Court expresses no view whatever on the merits of such grounds of appeal or other application.