Ebele Muorah v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Neil Cameron |
| Judgment Date | 17 February 2023 |
| Neutral Citation | [2023] EWHC 285 (Admin) |
| Docket Number | Case No: CO/74/2021 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 285 (Admin)
Neil Cameron KC
sitting as a Deputy High Court Judge
Case No: CO/74/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant in person
Ned Westaway (instructed by the Government Legal Department) for the First Respondent
Dr Ashley Bowes (instructed by Prospect Law) for the Second Respondent
Hearing date: 7 th February 2023
The Deputy Judge ( Neil Cameron KC):
Introduction
In this case Ms Ebele Muorah appeals under the provisions of section 289 of the Town and Country Planning Act 1990 (“TCPA 1990”) against the decision of the Secretary of State for Housing, Communities and Local Government, the First Respondent, subject to making corrections and variations, to dismiss an appeal under section 174 of the TCPA 1990 against an enforcement notice issued by the Second Respondent.
Permission to proceed with the section 289 appeal was granted by Timothy Mould QC sitting as a Deputy High Court Judge at a hearing held (by telephone) on 16 th February 2021.
An application to amend and add further grounds of appeal was refused by an order made by James Strachan QC sitting as a Deputy High Court Judge dated 10 th December 2021.
On 25 th May 2022, this case was heard together with an application made under section 288 of the TCPA 1990 to quash the First Respondent's decision to allow an appeal against the Second Respondent's decision to refuse to grant a certificate of lawfulness of existing use or development.
At the hearing held on 25 th May 2022 the court was informed that the Appellant was made bankrupt. The date on which the Appellant's name was entered in the insolvency register was 28 th July 2021.
Judgment in the section 288 application was handed down on 19 th July 2022.
In an order dated 21 st July 2022 I gave directions which allowed the parties to file and serve further submissions in writing on the consequences, if any, for the section 289 appeal, of the fact that the Appellant had been declared bankrupt.
The parties made written submissions and a hearing was set down to take place on 8 th November 2022.
The Appellant sought an adjournment of the hearing set for 8 th November 2022 on the grounds that she had made an application to the Central London County Court to determine whether her trustee in bankruptcy's notice of disclaimer in relation to 154A Harlesden Road, London NW10 3RE was defective. In her application for an adjournment, the Appellant stated that adjournment to the first open date in January 2023 would allow sufficient time to “…. resolve the issue of an alleged ‘defective’ title.”
The Appellant made an application for an adjournment of the hearing fixed for 7 th February 2023. That application was refused. I gave reasons for refusing that application at the hearing which took place on 7 th February 2023.
The First Respondent seeks an order that the appeal be struck out as the effect of the Appellant's bankruptcy is:
i) Her property formed part of the bankruptcy estate and vested in the trustee in bankruptcy.
ii) That property includes 154A, Harlesden Road, and therefore the Appellant no longer has an interest in that property.
iii) The cause of action in this case is a proprietary cause of action and therefore it also vested in the trustee in bankruptcy.
Background Facts
The enforcement notice relates to land at 154, Harlesden Road, London NW10 3RE (“the Site”).
On 24 th July 2017 the Council issued an enforcement notice (“the Enforcement Notice”). The alleged breaches of planning control specified in the Enforcement Notice were:
“Without planning permission, the erection of a canopy and door, facing Harlesden Road.”
And
“Without planning permission, the material change of use of the premises from one to two dwellings.”
The steps required to be taken set out in Schedule 4 to the Enforcement Notice were:
“Step 1: Cease the use of the premises as flats and its occupation by more than ONE household and remove all kitchens and cooking facilities except ONE, and remove all bathrooms except TWO, from the building.
Step 2: Demolish the front canopy and door, facing Harlesden Road, and restore this elevation back to its original condition before these works took place as per the attached photograph.
Step 3: Remove all fixtures and fittings associated with these works from the premises.”
Ms Muorah, the Appellant, appealed against the Enforcement Notice (“the Enforcement Notice Appeal”). In that appeal Ms Muorah relied upon the grounds set out at section 174(2) (a), (c), (d), and (f) of the TCPCA 1990.
The appeal against the Enforcement Notice was determined by an inspector appointed by the First Respondent. The inspector's decision was communicated by letter dated 22 nd August 2019 (“the August 2019 Decision Letter”). The inspector allowed Ms Muorah to add a ground of appeal under section 174(2)(g) of the TCPA 1990. He corrected Step 3 as set out in the Enforcement Notice by the deletion of the words “these works” and the substitution of the words “the change of use”. The ground (c) appeal succeeded in part. The inspector deleted the words “the erection of a canopy and door facing Harlesden Road” in Schedule 2, and deleted Step 2 in Schedule 4. The basis upon which that aspect of the ground (c) appeal succeeded were findings that that the ground floor window had been altered to form a door and the canopy erected, in September 2015, and at that time the property was in use as a dwellinghouse, and therefore benefited from the permitted development rights described in Class A of Part 1 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”). The ground (d) appeal failed on the basis of the inspector's finding that in September 2015 the property was in use as a dwellinghouse falling with either class C3(c) or class C4 set out in Schedule 1 to the Town and Country Planning (Use Classes) Order 1987 (“the Use Classes Order”). The ground (a) appeal was dismissed on the ground that the change of use from a single dwellinghouse to two flats was contrary to development plan policy. The ground (f) appeal was allowed on the basis that the requirement to remove all bathrooms except two exceeded what was necessary to remedy the breach of planning control. The ground (g) appeal was dismissed.
Ms Muorah appealed to the High Court against the decision set out in the August 2019 Decision Letter. The Secretary of State accepted that the August 2019 Decision Letter contained an error of law, as the effect of Step 1 in the enforcement notice was to deprive the owner of the permitted development right conferred by Article 3(1) and Class L of Part 3 of Schedule 2 to the GPDO. By an order made on 17 th January 2020 David Elvin QC sitting as a Deputy High Court Judge remitted the case to the Secretary of State for re-hearing and determination in accordance with the opinion of the court. That case has the neutral citation [2020] EWHC 649 (Admin).
By an application dated 7 th November 2019, Ms Muorah applied to the Council for a certificate of lawfulness of existing use or development (“the CLEUD Application”). The application related to the Site. The change of use in respect of which the certificate was sought was “change of a dwelling house into two flats”. By a decision notice dated 2 nd January 2020 the Council refused the CLEUD Application. In the decision notice by which they refused the application the Council stated that the application was made on 8 th November 2019. For the purposes of these proceedings, it makes no difference whether the application was made on the 7 th or the 8 th November 2019. The reason for refusing the application was:
“The proposal is not lawful as it contravenes the requirements of enforcement notice E/17/0062 for 154A Harlesden Road, NW10 3RE, which requires the use as two flats to cease and fixtures and fittings associated with the change of use to be removed.”
Ms Muorah appealed to the Secretary of State against the Council's decision to refuse to grant the CLEUD Application (“the CLEUD Appeal”).
On 7 th April 2020 the Planning Inspectorate (“PINS”) wrote to the Council and stated that they intended to appoint the same inspector to determine the CLEUD Appeal and the Enforcement Notice Appeal.
In a letter dated 16 th April 2020 the Council wrote to PINS setting out their position. That letter included the following:
“3. The Inspector decided that there was an unlawful change of use from a single to two dwellings. The High Court quashed that decision because of an inconsistency arising in the requirements of Step 1 of the notice, deciding “It is an issue which it appears could be dealt with simply on redetermination by the correction of step one, consistently with the other aspects of the DL” (paragraphs 33 and 49). In its letter of 24 March 2020 the Council suggested such simple correction. This could have been achieved by an exchange of letters with the appellant, but the appellant has rejected such an approach.”
In a letter dated 19 th August 2020 PINS wrote to the Council and informed them that it had not been possible to appoint the same inspector to determine the CLEUD Appeal and the Enforcement Notice Appeal and that different inspectors had been appointed to determine each appeal.
The CLEUD Appeal was determined using the written representations procedure. The appeal was allowed by a decision letter dated 10 th September 2020 (“the CLEUD Appeal Decision Letter”).
The Enforcement Notice Appeal decision was communicated in a letter dated 9 th December 2020 (“the Enforcement...
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