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
		03/05/2017

The Deputy Judge (Rhodri Price Lewis QC):

Introduction

1. This is an application under section 289(6) of the Town and Country Planning Act 1990 for leave to bring proceedings in the High Court to appeal against the decision of the First Respondent through his Inspector Mr Brian Cook BA (Hons) DipTP MRTPI to dismiss the Applicant's appeal against an enforcement notice issued on the 9^th September 2014 by the Second Respondent Council as local planning authority for the area.
2. The land affected by the enforcement notice comprises semi-detached premises known as 72 Bath Road, Hounslow, TW3 3EQ. The breach of planning control alleged in the notice is "without planning permission the construction of a self-contained residential outbuilding at the rear of the premises, the erection of a link extension, the erection of a single-storey rear extension and the use of the main dwelling house as three self-contained residential units."
3. The notice required the Applicant to cease the use of the main dwelling as three self-contained flats, to remove all but one of the kitchens from the house, to demolish the link and rear extensions and the outbuilding and to remove the resulting debris. There was a 3 month period for compliance. The link extension had already been demolished by the time of the inquiry into the appeal against the notice.
4. The appeal was heard on the grounds that planning permission ought to be granted in respect of the breaches of planning control (ground (a) under section 174(1) of the 1990 Act), that at the date when the notice was issued no enforcement action could be taken in respect of the breaches of planning control (ground (d)), that the steps required by the notice exceeded what is necessary to remedy any injury to amenity which had been caused by the alleged breaches of planning control (ground f)) and that the period for compliance specified fell short of what should reasonably be allowed (ground (g)). Other grounds had been raised by the Applicant but had been withdrawn by the end of the inquiry into the appeal.
5. That inquiry was held on the 15 and 16^th November 2016. The Applicant, then Appellant, company was represented by leading counsel and the Second Respondent was represented by junior counsel. Neither counsel appeared before me on the hearing of the application for leave to bring proceedings. The Applicant company was represented before me by Mr. Singhal who is a director of and the sole shareholder in the company. The business of the company is the letting of these premises. Mr Singhal and his wife, who is the company secretary, live elsewhere in Hounslow.
6. The Inspector issued his decision letter dated the 15^th December 2016 in which he corrected the allegation in respect of the change of use of the main house so that it alleged the "the material change of use of the main dwelling house from use as a dwelling to use as 3 self- contained residential units" but otherwise he dismissed the appeal, upheld the notice and refused to grant planning permission.
7. The Applicant's notice of claim was filed on the 16^th January 2017. Under CPR 52.20 and the accompanying Part 52 Practice Direction paragraph 22.6C (1) an application for permission to appeal must be made within 28 days after notice of the decision is given to the applicant. The 28 day period from the date of the decision letter itself ended on the 12^th January 2017 but there was a dispute as to when Mr Singhal received a copy of the letter, he was by then acting without legal advice and the First Respondent took no point on delay so I extended the time for making the application, if any such extension was necessary.

The Legal Framework:

8. An appeal under section 289(1) can be only on a point of law, as the sub-section itself provides. The court may refuse leave to appeal where there is no arguable case: Kensington and Chelsea Royal LBC v. Secretary of State for the Environment: [1992] 2 P.L.R. 116.

8. The general principles concerning the grounds upon which a Court may be asked to quash a decision of an Inspector or the Secretary of State are well established. I gratefully adopt the summary given by Lindblom J, as he then was, in Bloor Homes East Midlands Ltd v. Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) in the following terms:

"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v. Secretary of State for the Environment (1981) 42 P. & C.R. 26 , at p.28).

(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v. Porter (No. 2) [2004] 1 WLR 1953 , at p.1964B-G).

(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v. Secretary of State for the Environment [1995] 1 WLR 759 , at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v. Secretary of State for [2001] EWHC Admin 74 , at paragraph 6).

(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v. Dundee City Council [2012] PTSR 983 [now [2012] UKSC 13], at paragraphs 17 to 22).

(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, South Somerset District Council v. The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).

(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v. Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ Fox Strategic Land and Property Ltd. v. Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann LJ in North Wiltshire District Council v. Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."

9. Furthermore an Inspector appointed to conduct a planning appeal must:

(i) have regard to the statutory development plan (see section 70(1) of the 1990 Act and section 177(2) in relation to the grant of planning permission on appeals against enforcement notices);

(ii) have regard to material considerations (section 70(1) of 1990 Act);

(iii) determine the proposal in accordance with the development plan unless material considerations indicate otherwise (s38(6) of the Planning and Compulsory Purchase Act 2004);

(iv) apply national policy unless s/he gives reasons for not doing so - see Nolan LJ in Horsham District Council v. Secretary of State for the Environment and Margram Plc [1993] 1 PLR 81 following Woolf J in E. C. Gransden & Co. Ltd. v. Secretary of State for the Environment [1987] 54 P & CR 86 and see Lindblom J in Cala Homes (South) Ltd v. Secretary of State for Communities & Local Government [2011] EWHC 97 (Admin), [2011] JPL 887 at [50]; and

(v) if it is shown that the decision maker had regard to an immaterial consideration, or failed to have regard to a material one, the decision will be quashed unless the Court is satisfied that the decision would necessarily have been the same: see Simplex GE (Holdings) Ltd v. Secretary of State for the Environment [1988] 57 P & CR 306. See Gilbart J in South Oxfordshire v. SSCLG [2016] EWHC 1173 (Admin) at [86].

10. These principles apply mutatis mutandis to decisions on appeals against enforcement notices.

The Decision Letter:

11. Much of the evidence and argument at the inquiry was directed to ground (d) in relation to the material change of the use of the dwelling house from use as one dwelling to use as three self-contained residential units. By section 171B(2) where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. The Inspector concluded on the evidence both in writing and given orally under oath that the Applicant had not shown on the balance of probabilities that the use alleged as three self-contained residential units continued substantially uninterrupted for any period of at least four years prior to the issue of the notice: see the decision letter at paragraph 62 ("DL62"). No arguable point of law is raised by the Applicant in relation to this conclusion under this ground although he did take issue with the Inspector's findings of fact as to what could or could not be seen into the first floor from the ground and as to the extent of earlier demolition. Those points did not raise any arguable case under this ground (d).
12. On the appeal under ground (a) the Inspector identified three main issues for his determination, namely

(a) the effect of the development carried out on the living conditions of the occupiers of the accommodation with regard to the internal and external space and the outlook provided including privacy from overlooking;

(b) the effect of the development carried out on the living conditions of the occupants of the adjoining property with regard to noise and disturbance; and

(c) the effect of the development carried out on the character and appearance of the area: DL64

13. The Inspector found in favour of the Applicant in relation to issues (b) and (c) (DL78-89) but in relation to issue (a) he concluded that "the accommodation provided conflicts with Local Plan policies cited to a significant extent" and "with the London Plan policy 3.5(C) which requires that the design of all new dwellings should take account of the home as a place of retreat": DL76. He went on to write: "no evidence has been put forward to suggest that the development should nevertheless be permitted on the grounds of being demonstrable exemplary design or contributing to the achievement of other objectives of the London Plan. The development does not therefore comply with London Plan policy 3.5(D) either": DL76.
14. He went on to consider the "two alternative forms of development", namely three or two self-contained flats in the main building, that he was invited to look at in deciding whether to grant planning permission: DL91 to 94. He declined to grant planning permission for either alternative on the basis that there remained an in principle objection to the subdivision of this small property created by policy SC6(f) of the Local Plan, that three flats would have the same policy objections as the development being enforced against and that with two flats the first floor flat would be deficient in space and it had not been shown how the ground floor flat could be re-configured to provide the required family-sized unit.
15. In relation to the appeal under ground (f), (that the steps set out in the notice exceed those that are required to remedy the injury to the amenity of the occupiers of the structures), the Inspector concluded that there was no evidence provided to him that anything short of demolition would achieve the council's purpose of remedying the injury to amenity. He wrote that the use of the General Permitted Development rights to reinstate the structures "could not necessarily be assumed": DL103. He went to hold that the requirement to remove all but one of the kitchens in the main building was not excessive: DL106. He agreed with the Council's characterisation of the use of the building by family members as "theoretical." So he dismissed the appeal on ground (f) too.
16. In relation to ground (g) that the 3 month period allowed for compliance is too short, he found no reason to vary that period which had been determined by the Council's previous experience of such cases: DL113.

The grounds of appeal before the Court

17. Mr Singhal prepared the 19 written Grounds of Appeal before the court and produced a 28-page witness statement which expressly recognised on its first page that it was also "covering arguments." He presented his arguments orally to me in court. Many of his written and oral arguments made allegations of irrationality, prejudice or harshness which were difficult to follow and were not founded on the terms of the Inspector's decision letter or of the enforcement notice. Many of his arguments were impermissible attempts to rerun the planning merits of the appeal before the Inspector.
18. Doing the best I can and largely in line with Ms Sackman's analysis on behalf of the First Respondent, I identify the following claimed grounds of appeal as raising matters of law.

(i) That the Inspector erred in applying the policies of the development plan as they were at the time of his decision rather than when the enforcement notice was issued: see written Grounds of Appeal 9,10 and 11.

19. In my judgment this ground is unarguable. By section 177(2) of the 1990 Act, in determining whether to grant planning permission on an enforcement appeal the decision maker is obliged to have regard to the development plan. By section 38(6) of the 2004 Act such a determination must be in accordance with the development plan unless material consideration indicates otherwise. The development plan referred to in those sections is the legally adopted development plan for the area at the time of the determination. The Inspector was right in understanding this to be the position: see DL7 and DL67-68. So the Inspector was right to apply the various space standards set out in the Local Plan and in the London Plan as adopted by the time of his decision. The policies he applied were all part of the adopted development plan by the time of the inquiry at which the Applicant was represented by leading counsel.

(ii) That the Inspector failed to have regard to material considerations and/or had regard to immaterial considerations

20. Mr Singhal addressed these points in his written Grounds of Appeal at paragraphs 12 to 16. The considerations he referred to are (a) that the provision of affordable housing may justify the relaxation of space standards; (b) the needs of the elderly vulnerable tenants for accommodation; and (c) the financial impact on the Applicant of enforcement.

22. These matters were addressed by the Inspector:

(a) At DL76 he referred to the statements put before him from current and past occupiers which set out the rental levels of the properties so he was well aware of the position. These flats are not "affordable housing" in the strict planning sense as they are privately rented albeit at a low market rent. The policies do not apply lower space standards for low market rent properties.

(b) The Inspector read the statements of the tenants although none was called to give evidence before him. He referred to their potential difficulties at DL96. In my judgment he gave this matter appropriate consideration. That is so whether the effect on them is considered in terms of the Equality Act 2010 or of the Human Rights Act 1998.

(c) The Inspector expressly addressed the financial impact on Mr Singhal and his family at DL95.

21. In oral argument Mr Singhal referred to documents that he produced shortly before the hearing. This bundle contains a table which purports to set out a list of material considerations Mr Singhal suggested had been overlooked. These were matters that the Inspector had considered and Mr Singhal's submissions mainly were an attempt to rerun the arguments on the planning merits that do not establish any arguable legal ground for challenge before the court.
22. Rows 2, 6 and 7 of the Applicant's table of material considerations refer to the position of tenants in the building and the Inspector had considered this matter as I explained above.
23. Row 3 refers to the financial impacts on the Applicant which again the Inspector did consider at DL95.
24. Rows 1, 5, 8, 9 and 10 all raise matters going to the planning merits under ground (a) - such as the protection of the amenity of occupiers and the sustainability and suitability of the location - which were considered by the Inspector who had the benefit of hearing the evidence and seeing the site and its surroundings. These matters do not establish any arguable legal ground of challenge.
25. Rows 12 and 13 raise the issue of social and affordable housing that I have already dealt with above at paragraph 27 and raise no arguable legal ground of challenge.
26. Row 11 raises the possibility that even though the flats had not been used continuously for the requisite period under ground (d) they had been used for a period of time and that should have been a material consideration for the Inspector to address. That does not raise an arguable ground: the Inspector heard all the evidence on periods of use and he was able to judge the planning significance of any such use. Such matters were for his planning judgment and are not for the court.
27. Row 14 again raises the issue of which version of the development plan should have been applied. I have already addressed that argument. It raises no arguable ground of challenge.
28. Row 15 raises an issue of the fairness of the procedure at the inquiry and when copies of policies were provided to the Applicant. The Applicant was represented at the inquiry by very senior and experienced planning counsel and no criticism has been or could be made of his actions or advice. There was ample opportunity to consider the current development plan policies to which the Inspector was obliged by law to have regard.
29. Row 16 refers to the Second Respondent council's refusal to accept an application for retrospective planning permission at a time when an earlier development plan was the statutorily adopted version. Row 17 refers to the earlier decision of the Council on the expediency of enforcement. Rows 18, 20 and 21 refer to earlier views of members and of an officer of the Council. Even if these matters are factually correct, they can found no criticism of the Inspector or his decision letter which is the subject matter of this application before the court and so they do not establish arguable grounds of appeal. The decision letter read as a whole considered the expediency of enforcement action in the circumstances established by the evidence before the Inspector.
30. Row 22 refers to the existence of a rear extension and outbuilding next door to the site. Again the Inspector had the benefit of hearing the evidence and more importantly in this context he carried out a site visit which enabled him to form his planning judgment on matters such as the impact of and effect on amenity of surrounding development. These are quintessentially matters for his planning judgments which he reached in his decision letter. The court does not become involved in such issues on the planning merits: see paragraph 14 (3) above.
31. Rows 23 and 24 refer to the histories of the outbuilding and of the rear extension but the Inspector concluded that each structure had been demolished and rebuilt by the Applicant: see DL59. That conclusion was open to him on the evidence he heard and on what he saw at his site visit. He decided that even if there had been a lawful use of the flats created during the period 2006 to 2012 – and he did not consider there had been - any such use was brought to an end by those demolitions in 2013. So the Inspector did look at the relevant history of the outbuilding and of the rear extension and on the basis of his findings of fact reached his conclusions. There is no error of law in him so doing.
32. I am satisfied that there is no arguable case that the Inspector failed to have regard to material considerations.
33. Rows 4 and 19 of the Applicant's table refer to his fallback position and his permitted development rights. This is in essence a different argument from the submission that the Inspector failed to take into account material considerations and I shall therefore address it separately as did Ms Sackman in her submissions.

(iii) That the Inspector failed to have regard to the fallback positions open to the Applicant

34. It was argued on behalf of the Applicant at the inquiry that the house had been used in the past for multiple occupation and so could again, with more disturbance to neighbours than the uses being enforced against. Secondly, it was argued that both the rear extension and the outbuilding could be rebuilt under permitted development rights and so there was no purpose in requiring their demolition.
35. The Inspector dealt with these arguments at DL81 to 85 and at DL103 to 107. He formed various views as to whether any of these fallback positions could or would implemented.
36. In respect of the outbuilding, he pointed out that for its rebuilding to be permitted under the terms of the Town and Country Planning (General Permitted Development) (England) Order 2015 ("the GPDO") Schedule 2 Part 1 Class E, the outbuilding would have to be for a purpose incidental to the enjoyment of the dwellinghouse. The Applicant had argued that "the outbuilding… would be incidental to the main house and used as a home office or gym". The Inspector acknowledged that a house in multiple occupation "would be a dwelling house for the purposes of the GPDO" (see DL82) but he recorded that "no such [incidental] purpose was put forward in connection with an HMO use." See DL83. He concluded that "it is far from clear that such a use would actually be implemented".
37. In respect of the rebuilding of the rear extension the Inspector pointed out that whilst it may be permitted under Schedule 2, Part 1 Class A.1(g) (i) until May 2019, the development cannot take place until the prior approval process set out in Schedule 2, Part 1, Class A.4(7) has been completed. See DL84.
38. Mr Singhal rightly pointed out to me that such an approval process is necessary only "where any owner or occupier of adjoining premises objects to the proposed development": see A.4(7) itself. There had been no objection in respect of his appeal. Mr Singhal also pointed to an enforcement appeal decision from 29^th September 2014 in respect of a rear extension where the Inspector noted that none of the neighbours had objected and that "while circumstances may change, for example a change in the occupation of one of the adjoining premises. It is nevertheless reasonable to assume that, if the approval procedure were to be followed, there would be no objection to the extension and therefore the council's prior approval would not be required and the extension could be constructed as 'permitted development'. The Inspector went on to write in his decision letter: "The probability that, if the extension were to be demolished, it could be re-erected under 'permitted development' rights is an important consideration weighing in support of this appeal" and he went on to grant planning permission under ground (a).
39. The Inspector in the Applicant's appeal expressed the view that "it is far from clear whether either [the outbuilding or the rear extension] could be re-instated as they now are under its provisions" [of the GPDO]. See DL82. He came to that view in respect of the rear extension because the prior approval process needed to be gone through. He did not however address the point that was put before him that such prior approval was not necessary if neighbours did not object and none had done so here. The relevant earlier appeal decision also decided in the same council area was put before him but he did not address what the earlier Inspector had viewed in similar circumstances as "an important consideration weighing in support of the appeal" namely "the probability that, if the extension were to be demolished, it could be re-erected under 'permitted development' rights."
40. In terms of the potential for reinstatement of the outbuilding, the Inspector formed his view that it was far from clear that such reinstatement could occur under the GPDO because an incidental purpose had not been put forward in relation to a use of the house for multiple occupation. However, he accepted that a building in such a use was a dwellinghouse for the purposes of the GPDO. The provision of a gym or of office space for the occupiers of such a dwellinghouse in such use does not seem to have been considered by him.
41. He was considering these matters in his decision letter in the context of the effect of the development being enforced against on the living conditions of the adjoining property's occupants and he concluded that there was no conflict with the relevant Local Plan policies on this issue and that indeed that the noise and disturbance from the fall back position of a house in multiple occupation with a potentially larger rear amenity area than the one then existing could be materially more harmful than that from the development carried out. See DL85. These conclusions had no relevance to his conclusions in respect of the inadequacy of the accommodation provided for its occupiers in conflict with polices of the development plan. That was the basis on which he dismissed the appeal under ground (a) and refused planning permission.
42. However, in respect of ground (f) (that the steps required by the notice to be taken exceed what is necessary to remedy the injury to the amenity of the occupiers of the outbuilding and the rear extension) the Inspector wrote that he did not "believe that the GPDO rights that were available if the property was returned to a single dwelling were advanced in respect of this ground of appeal." See DL103. However, the "Brief Opening Statement on behalf of the Appellants" written by leading counsel was before him and also before the court. Under the heading "Ground (f)" Counsel wrote:

"24. The requirements of the notice are excessive and disproportionate.

25. They ignore the fall back position to which the appellants are entitled."

43. Immediately before that passage counsel wrote by express reference to "a fall back position":

"…if the notice is upheld and the rear extension demolished a replacement can be erected in accordance with PD rights for the restored main dwelling. As will the outbuilding which would be incidental to the main house and used as a home office or gym."

44. In my judgment the Inspector was wrong to believe that the GPDO rights were not advanced in respect of ground (f). But the Inspector did go on to write: "In any event, I have already explained in dealing with the HMO fall back position why reinstatement of the structures there now using those rights could not necessarily be assumed." See DL 103.
45. But those earlier passages rely on, firstly, the necessity of prior approval in respect of the rear extension and the Inspector had not dealt with the argument that that process would probably not be necessary and secondly the absence of an incidental purpose in relation to the house in multiple occupation whereas potentially what is being considered here is the house being restored to a family use and incidental use of the outbuilding as a home office or gym had expressly been put forward in that context.
46. The Inspector did go on to agree with the Council's characterisation of the Applicant's case on both this ground and the fall back position as theoretical. But there is an inevitable degree of theorising in deciding what use a house would be put to after its current use is stopped and it reverts to a family home or to a use as a house in multiple occupation. Permitted development rights are available to the Applicant in certain circumstances that would allow him to rebuild the outbuilding and the rear extension exactly as they now are. In my judgment the Applicant did put those permitted development rights forward as a reason why he should not be required to demolish those structures and it is arguable that the Inspector erred in law in failing properly to understand the extent of those rights and to take their full potential effect into consideration in determining what steps were necessary to remedy the harm to the amenity of the occupiers of the residential units and the outbuilding. Once those self-contained residential uses stopped the amenities of the occupiers were no longer harmed by them living in those conditions. In my judgment it is arguable that in those circumstances the Inspector should have gone on to consider whether the rear extension and the outbuilding needed to be demolished given that when the enforcement notice was otherwise complied with the Applicant would potentially have permitted development rights to rebuild the rear extension and the outbuilding.

Conclusion:

47. For those reasons in my judgment there is an arguable case that the Inspector erred in law in his consideration of ground (f) and of the availability of permitted development rights in respect of the outbuilding and the rear extension and I grant leave to bring these proceedings on that ground.
48. I should record that after I began to draft this judgment I received an email from the Applicant containing further information and argument. I had made it clear at the end of the hearing that I was reserving judgment and I was adjourning the matter solely for that purpose. There was no scope therefore for further evidence or submissions. I did read the email and it contained nothing that would have altered this judgment if I had taken it into account.
49. I invite Ms Sackman to draft an appropriate order in these circumstances and to seek the Applicant's agreement to its terms.