Bowring v The Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Charles George |
| Judgment Date | 27 February 2015 |
| Neutral Citation | [2015] EWHC 1027 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 February 2015 |
| Docket Number | CO/1027/2014 |
[2015] EWHC 1027 (Admin)
IN HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand
London, WC2A 2LL
Charles George QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/1027/2014
Mr C Van Heck appeared on behalf of the Appellant
Mr M Dale-Harris (instructed by TREASURY SOLICITORS) appeared on behalf of the Respondent
THE DEPUTY JUDGE: This an appeal ("the second appeal") under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision dated 25 February 2014 ("the second decision letter") of an inspector ("the second inspector) appointed by the Secretary of State for Communities and Local Government. The London Borough of Waltham Forest ("the Council") issued an enforcement notice ("the enforcement notice") on 25 May 2011 in respect of property at 61 Lincoln Street, Leytonstone, London E11 4PZ ("the property").
The enforcement notice alleged that there had been a material change of use, namely a change of use from use as a single dwelling house to use as three self-contained flats. The notice required cessation of use of the three self-contained flats, the restoration of the property to its authorised use as a single dwelling and the removal of all structures, fixtures and fittings associated with the use of the property as three self-contained flats, including any kitchen fittings.
It is appropriate first to set out the background and then to refer to the relevant provisions of the Town and Country Planning (Use Classes Order) 1987 as variously amended ("the Use Classes Order") before returning to the history of the present litigation.
Background.
The property was purchased by the appellants, Mr and Mrs Bowring, in 1998 when it was in a substantial state of disrepair. The appellants carried out various works to the property. The original intention was to use the property as a house in multiple occupation ("HMO"). The use was changed to a HMO at some time between 2008 and early 2010 ("the first change of use"). The precise date remains obscure despite two decision letters. Then in late 2010 the property was divided into three separate flats ("the second change of use").
Although there was initially an appeal against the enforcement notice on ground (b), this ground was withdrawn in advance of the hearing before the first inspector. Thus there is no dispute that the second change of use required and did not have planning permission.
The Use Classes Order.
By section 55(2) of the 1990 Act:
"the following … uses of land shall not be taken for the purposes of this Act to involve development of the land –
……
(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land for any purposes of the same class."
Whether the first change of use required planning permission depends upon whether the particular HMO fell within Class C3(b) of the Use Classes Order in its original version, which was current at the time of the first change of use. Class C3(b) then covered:
"Use as a dwelling house whether or not as a sole or main residence –
……
(b) by not more than six residents living together as a single household (including a household where care is provided for residents)."
With effect from 6 April 2010 Class C was amended and a new Class C4 was specified by the Town and Country Planning (Use Classes) (Amendment) (England) Order 2010, article 2(3). The former class C3(b) was refined into:
"(b) not more than six residents living together as a single household where care is provided for residents; or
(c) not more than six residents living together as a single household where no care is provided to residents (other than an use within Class C4)."
A new Class C4 (Houses in Multiple Occupation) was specified:
"use of a dwelling house by not more than six residents as a 'house in multiple occupation'."
The policy behind the change appears to have been a view that some of those claiming to fall within the old Class C3(b) were not really "living together as a single household" and should be reclassified under Class C4 where there is no "single household" requirement.
Prior to the 2010 change the term "single household" in the old Class C3(b) involved a test of fact and degree, depending on whether the six or fewer persons had sufficient stability and communality about their living arrangements to be "living together as a single household, see R (Hossack) v Kettering Borough Council [2003] 32 P&CR 34. The statutory instrument implementing the 2010 Class C3 changes states that the Housing Act definition applies "for the purposes of Class C3(a)". Miss Blackmore for the Secretary of State argued therefore that a different interpretation of single household applied to Class C3(a) from that which applied to Class C3(b) and (c). Mr Van Heck for the appellants argues that the footnote contains a typographical error and must have been intended to mean and should be construed as "for the purposes of Class C3" thus omitting (a) after C3. He contends that the effect of the 2010 change was to apply the much more restrictive definition of single household in section 258 of the Housing Act 2004 to the expression "single household" wherever that appears in the new Class C3.
Guidance on the interpretation of the old Class C3 and the new Classes C3 and C4 is contained in ODPM circulars 03/2005 and 08/2010, the latter of which says at paragraph 10:
"The result of this [2010 amendment] was that development previously falling under Class C3 was reclassified and now falls into either new C3 or C4 Classes. This reclassification does not amount to a change of use under planning legislation (it is not classified as development) — so no consequences arise from the reclassification in terms of the need to seek planning permission."
This may provide some limited support for Mr Van
Heck's interpretation. However, I do not need to resolve the disputed matter, the competing arguments not having been fully developed before me. It is plain that very strong grounds would be needed to displace the presumption that the footnote was intended to refer only to Class C3(a).
On 1 October 2010 further provision was made by the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) Order 2010, so that development consisting of a change of use of a building between Classes C3 and C4 became permitted development. However, since 16 September 2014 the effect of a direction made by the Council under article 4 of the Town and Country Planning (General Permitted Development) Order 1995, as amended by the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2010, has been that planning permission is needed within the Council's area to change from Class C3 to Class C4.
Round One.
The appellants appealed against the enforcement notice on a number of grounds and their appeal was heard at a hearing on 13 December 2011 ("the hearing") before an inspector ("the first inspector"). By a decision dated 22 November 2011 ("the first decision letter") the appeal was rejected on most grounds, but in response to the appeal under ground (f)(excessive steps) the requirements of the enforcement notice were varied under section 176(1) of the 1990 Act so that rather than require the removal of the kitchen fittings and equipment from both the first and second floors, all that was required was removal of the kitchen fittings and equipment from the second floor. This variation was made because the first inspector acknowledged that:
"In relation to a Class 3 use, this could mean that the property could revert to a house in multiple occupation but it would still be classed as a single dwelling house." (paragraph 23).
He said that he accepted the appellant's contention that it was not unusual for single dwellings or for dwellings shared by more than one persons to have more than one area for food preparation; and that requiring removal of only the first floor kitchen would give the opportunity for people living in the house to use both the large kitchen on the ground floor and/or the smaller one on the second floor, which arrangement would be in line with the aims of the other requirements in restoring the property to a "Class 3 use" (paragraph 25). His several references to a "Class 3 use" must be to "Class C3. Dwelling houses" in the Use Classes Order, as amended in 2010. It would also appear that he shared Miss Blackmore's rather than Mr Van Heck's construction of single household in the new Class C3(c).
In an attempt to retain both upper floor kitchens the appellants then appealed against the first decision letter under section 289 ("the first appeal"). Their contention was that since the two additional kitchens were installed before the material change of use to three flats and were intended to further a different lawful use of the property, namely a use as a house in multiple occupation, the enforcement notice could not lawfully require their removal; such a notice would exceed what was required to remedy the breach of planning control. Alternatively they argued that the first inspector had not considered that issue and did not decide whether the installation of the kitchens was or was not part and parcel of the making of a material change...
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