QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| THE QUEEN
on the application of
(1) MR DAVID MICHAEL USHER
(2) MRS ANN MARGARET USHER
|- and -
|FOREST HEATH DISTRICT COUNCIL
and Public Law) for the Claimants
Mr Michael Bedford (instructed by Jo Hooley, solicitor,
Share Legal Services for Forest Heath District Council) for the Defendant
Hearing date: 19 September 2017
Crown Copyright ©
Nathalie Lieven QC :
"Building Y - Ground (f)
55. The refusal of planning permission is not based solely on the size of the building. A requirement simply to reduce its size would not therefore address its residential purpose. Further, as above, this is a new building not simply an enlargement of a pre-existing one. The requirement to demolish it is thus not excessive to remedy either the breach of planning control or the harm to amenity. It is not for me to prescribe what the Appellant may lawfully do, if anything, once the notice has been complied with. The Council equally have their own powers of variation of the notice under section 173A if appropriate."
"In this light therefore, I offer the following further comments on how we expect matters in relation to the southern building (the illegal dwelling) to be taken forward. As advised, this should be taken as being entirely distinct from any ongoing discussions in relation to the northern building and any open storage since I do not accept the materially of your hypothetical fallback, not least as advised noting the ongoing and very significant visual harm arising from the southern building, as supported by both appeal Inspectors, and also, as further acknowledged by the most recent appeal Inspector, the need to ensure that public faith in the planning process is not undermined.
As I have previously advised, this matter will be presented back before Members of the Forest Heath Development Control Committee on Wednesday 2ndNovember. You will note that the September 2015 DCC resolution required an update be provided after the 12 month moratorium on enforcement action had expired. In any event, such an update is pertinent in light of the August 2016 dismissal of your client's latest appeal. This report will not seek Member approval for any further steps, rather it will simply provide an update to them on the latest position relating to this matter.
Notwithstanding the dismissed appeal, and notwithstanding any ongoing discussions in relation to the northern building, there remains a serious breach of planning control and your client's continued occupation of the dwelling on site is illegal. Consideration is still being given to the possibility of prosecuting this ongoing breach. I hereby write therefore to set out the steps I expect to see occur, and over what timescales, plus set out the steps that the Authority will take, and over what timeframe, if it is not satisfied, at any stage, and at its discretion, that matters are progressing sufficiently swiftly.
Firstly, I expect to receive, within seven days from the date of this e-mail (by Friday 14th October 2016), written confirmation that your client intends to comply with the terms of the Notice, such communication to also update the LPA on any steps they have already taken since the dismissal of the most recent appeal towards effecting compliance with the Notice.
Within one calendar month from the date of this e-mail (by Monday 7thNovember 2016) I expect to have sight of written confirmation that quotes for the demolition of the dwelling have been sought and within two calendar months from the date of this e-mail (by Wednesday 7th December 2016) I expect to have received written confirmation, and proof, that a contract for the demolition of the dwelling has been entered into. Any such contract should ensure demolition and site clearance in full no later than Tuesday 31st January 2017. If your clients intend to effect demolition of the property themselves then confirmation of this will be expected in writing within one calendar month (by Monday 7th November 2016) with demolition effected no later than two calendar months from the date of this e-mail (by Wednesday 7th December 2016).
A failure to meet any of these timescales, including any failure to confirm, within seven days, your clients' confirmation of their intention to comply, will leave the Authority with no option other than to effect 'direct action' in order to ensure compliance, with a charge subsequently being placed on the property. Any failure to meet any of these timescales may also lead to the Authority instigating a prosecution against your client for their wilful failure to comply. I can confirm that the procurement process for such direct action has been completed and that the Authority intends to ensure compliance with the terms of the Notice no later than Tuesday 31st January 2017, and possibly earlier depending on how your client responds to this e-mail and the requests, and timescales, set out in the preceding paragraph. I should also add, for the record at this stage, that investigations are ongoing in relation to other alleged breaches of planning control at this site and the Authority reserves the right to serve a further Notice or Notices without further written warning should it be considered expedient. I should also add, for the record, that the Authority will use its legal powers of entry to the site, at its discretion, when access is needed. Notice of such access might or might not be given as necessary.
I hope this response is clear, and as helpful as possible in the circumstances, and would be happy to discuss this in more detail should you require. I apologise that we have been unable to speak on the telephone. I will endeavour to follow this e-mail up with a call to make sure there is no misunderstanding from either party. I am working from home today but am in the office on Monday and would be happy to diarise a time to call if you could confirm your availability. I am pleased to note your client's acknowledgement that the Authority has always sought to act fairly and reasonably, respecting that it is investigating a longstanding and very serious breach of planning control, and would rather work with you and your clients. However, if material steps are not taken in a timely fashion to effect compliance, then the Authority will unilaterally ensure such within its own 31stJanuary 2017 deadline. I trust that such will not be necessary and that we can work with you and your client to ensure that the terms of the Notice are met in a timely fashion, if required, concurrent to ongoing dialogue about your client's options in relation to the northern building. If your client needs assistance from colleagues without our Housing team about alternative accommodation then please let me know and I will ensure that contact is made with an appropriate colleague.
Please note that my comments are offered informally and without prejudice."
"As Dave [Mr Beighton] has already explained, if we receive the applications you have previously indicated you will submit, within the timeframes you have suggested you will submit them within, and if information presented within said applications causes the LPA to reappraise the position in relation to Small Fen Farm then it will do so. I give you my commitment as Planning Service Manager that this will take place, in addition to that commitment which you have already received from Dave.
My firm suggestion, therefore, and with respect, is that you proceed to submission of these [the 4 applications] within the timescales you have set out. However, the submission of such, or the non-submission of such, does not change the deadline that the LPA has set of 31st January 2017 for compliance in full with the terms of the Notice. I am also disappointed that your client has failed to commit to unilateral compliance with the terms of the Notice by 31st January 2017. Regrettably therefore I must continue to progress steps towards the taking of Direct Action to ensure compliance before 31st January 2017."
"On balance, and in also assessing the impact of Direct Action upon the owners… it is considered that the correct balance between the public interest and the private interests in this matter lies in taking Direct Action to secure compliance with the terms of the Notice".
The report also considered the further representations from Mr Durr and the intention to submit further applications. The report said at paragraph 9;
"Officers are satisfied that if Direct Action is to be taken, that sufficient time exists to carefully and reasonably consider any new information presented. If this calls for such a reassessment of any decision to take Direct Action at any stage before such action is progressed then such reassessment will be made…"
The decision was taken, pursuant to the delegated powers, to take Direct Action. It is not suggested by the Claimants that Mr Wood did not have the power to make this decision, or indeed that there is any legal error in the 19 October 2016 report.
"17. Opportunity has been given to the owners to present their case as to why this illegal dwelling should remain…
18. Officers have written to the agent representing the owners and have specified clearly the steps that they expect to see happen, and over what timescales in order to secure compliance with the terms of the outstanding enforcement notice. It is hoped that the owners will comply finally with the terms of the Notice, and a final deadline of the end of January 2017 has been specified. A failure to meet any of these requirements or timeframes will lead to the Authority considering instigating a prosecution for failure to comply along with the taking of Direct Action to ensure compliance, with a charge placed on the property to enable monies to be recovered.
19. Discussions are continuing with the site owner in relation to other planning matters arising in relation to this site… There is nothing therefore in any wider enforcement investigation or other planning matter in relation to this site that should preclude seeking compliance in full with the terms of the Notice in as reasonable a timeframe as possible."
"We have previously advised you that steps are being taken to ensure compliance with the terms of the Notice before the end of January 2017. This is a complicated and involved process as I am sure you can appreciate and requires a reasonable lead in time. I am in a position to confirm that all matters are ready for this Authority to effect compliance. However, as I note Dave and Rachel have stated previously, if the outcome of the consideration of the four applications requires a reassessment of the decision to effect unilateral compliance with the terms of the Notice then, yet again, you have my assurances that such a reassessment will be made. Otherwise, as we have consistently and repeatedly stated, we expect compliance before the end of January 2017.
This matter relates to an important and long standing breach of planning control, with great local interest. The Council has a duty to keep all interested parties informed of progress. This is entirely reasonable. The deadline for compliance with the terms of the Notice that we had set was included within the publically available November 2016 DC Committee report so is already in the public domain."
"…. Please also be aware therefore that, in light of these refusals, the Authority is still seeking to secure compliance with the terms of the outstanding enforcement notice relating to the southern building within the previously stipulated deadlines of the end of January 2017. Steps have been taken to line up demolition contractors on the possibility that consideration of these applications would not materially alter the planning context, and on the basis that voluntary compliance would not be forthcoming. As a consequence, direct action to effect compliance will commence if still necessary at 08:30 on Monday 30th January 2017. It is anticipated that these works will take three days to complete and your client's co-operation in this matter would be welcomed. A charge will then be placed on the property to ensure that the LPA can recover its costs. Please note that contractors will use the Authority's legal power under s178 to access land and enter buildings at the site to secure compliance so please take this communication as notice of such.
No further written warning will be given but please remind your client again that these works will not include a soft strip of the property and that they should ensure that any fixtures and fittings they wish to retain are removed from the property before demolition commences on Monday 30th January 2017." [underlining in original]
178. — Execution and cost of works required by enforcement notice.
(1) Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may—
(a) enter the land and take the steps; and
(b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.
(2) Where a copy of an enforcement notice has been served in respect of any breach of planning control [...]—
(a) any expenses incurred by the owner or occupier of any land for the purpose of complying with the notice, and
(b) any sums paid by the owner of any land under subsection (1) in respect of expenses incurred by the local planning authority in taking steps required by such a notice to be taken,
shall be deemed to be incurred or paid for the use and at the request of the person by whom the breach of planning control was committed.
(5) Regulations under subsection (3) may also provide for the charging on the land of any expenses recoverable by a local planning authority under subsection (1).
(6) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
i) The failure of the Council to invite representations from the Claimants as to its enforcement action, or to notify them of the decision of 19 October 2016 to take direct action is an error of law (Ground 4ii);
ii) The decision to take direct action was contrary to a legitimate expectation arising from the Development Control Committee meeting of 2 September 2015 (Ground 4i);
iii) The maintenance of the 31 January 2017 deadline with no "soft strip" was disproportionate and unreasonable (Ground 2);
iv) The failure to notify the Claimants of the decision to take direct action until 26 January was unlawful and unfair (Ground 1);
v) There was a failure to consider alternatives contrary to Government Guidance (Ground 3).
Issue (a) Ground 4(ii)
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
Art.12.2.1(c) sets out the principle that:
"in the case of 'quasi-judicial' decisions (e.g. a decision as to whether or not to grant a licence) a fair hearing conducted in accordance with the rules of natural justice should be afforded to the person who is the subject of the decision"
Art.12.8.1 states that:
"... an officer acting ... in a quasi-judicial manner or determining/considering (other than for the purposes of giving advice) the civil rights and obligations or the criminal responsibility of any person will follow a proper procedure which accords with the requirements of natural justice and the right to a fair trial contained within Article 6 of the European Convention of Human Rights"
Issue (b) Ground 4(i)
Issue (c) Ground 2
Issue (d) Ground One
Issue (e) Ground 3
"The local planning authority has powers to enter enforcement notice land and carry out the requirements of the notice themselves (section 178 of the Town and Country Planning Act 1990). It is an offence to wilfully obstruct anyone who is exercising those powers on the local planning authority's behalf.
These default powers should be used when other methods have failed to persuade the owner or occupier of land to carry out, to the local planning authority's satisfaction, any steps required by an enforcement notice" (Paragraph: 023 Reference ID: 17b-023-20140306) (underlining added).