David Makanjuola v Secretary of State for Communities and Local Government (1st Respondent) Waltham Forest Borough Council (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 14 November 2013 |
| Neutral Citation | [2013] EWHC 3528 (Admin) |
| Docket Number | Case No: CO/6045/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2013 |
[2013] EWHC 3528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: CO/6045/2012
and
Mr Tim Buley (instructed by Leigh Day) for the Appellant
Mr Richard Turney (instructed by Treasury Solicitors) for the 1 st Respondent
Hearing date: 05 November 2013
Approved Judgment
Introduction
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.
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.
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
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).
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).
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).
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.
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."
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
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
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).
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.
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."
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
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."
The breach of planning control alleged...
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