Elmbridge Borough Council v Secretary of State for Communities and Local Government (First Respondent) Giggs Hill Green Homes Ltd (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 14 May 2015 |
| Neutral Citation | [2015] EWHC 1367 (Admin) |
| Docket Number | Case No: CO/5330/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 May 2015 |
[2015] EWHC 1367 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: CO/5330/2014
and
Scott Stemp (instructed by Head of Legal Services, Elmbridge Borough Council.) for the Appellant
Andrew Fraser-Urquhart QC (instructed by Wedlake Bell LLP) for the Second Respondent
The First Respondent did not appear and was not represented
Hearing date: 6 May 2015
Introduction
This appeal raises issues concerning the breadth of the powers available to the Secretary of State to vary the terms of an Enforcement Notice upon appeal.
The Second Respondent, Giggs Hill Green Homes Limited, was the recipient of an Enforcement Notice ('EN') issued by the Appellant, Elmbridge Borough Council, in which the demolition of what was said to be an unauthorised development was sought, namely, of ten three-storey townhouses and associated works. An appeal was launched the result of which, in short, was that the Secretary of State's Inspector varied the EN to require the development to comply with the planning permission originally granted for a similar (though less extensive) development. The Appellant appeals to this court pursuant to section 289 of The Town and County Planning Act 1990, seeking an order quashing that decision, on the basis that the Inspector exceeded his statutory powers by proceeding in that way. Permission to appeal was granted by Cranston J following an oral hearing on 9 December 2014. On 27 April 2015 the Secretary of State indicated by a letter from the Treasury Solicitor that it was conceded that the Inspector's decision should be quashed. However, the Second Respondent does not accept that such a view is correct and has continued to resist the appeal.
Background
The development site in question is known as Royal Thames House, Portsmouth Road, Thames Ditton in Surrey. It has been described as a trapezoidal parcel of land, extending to approximately 0.17 hectares, with frontages onto both Portsmouth Road (to the west) and Claygate Lane (to the east). The site is set within a predominantly residential area with some commercial, primarily office, uses. As built, the site comprises two rows of five three-storey terraced townhouses with associated basements and undercroft parking. One row of terraces faces onto Portsmouth Road and the other onto Claygate Lane. The terrace on the Portsmouth Road side is opposite a commercial office located to the north east of the site. The terrace on Claygate Lane is opposite two-storey residential dwellings located to the east. The adjacent terrace to the north comprises a mix of residential and commercial properties. To the south the site is bounded by a railway embankment leading up to the railway line which runs between Surbiton and Thames Ditton stations.
On 27 May 2008 the Second Respondent was granted planning permission on appeal by an inspector to demolish the existing offices on site and to erect nine three-storey residential units with basement parking. A number of conditions were attached to the grant of the permission the first of which was that the permitted development "shall begin before the expiration of three years from the date of this decision." The other conditions related to the way in which the development was to take place. Conditions 2, 3, 8 and 9 each required that "[no] development shall take place until" samples of materials (Condition 2), details of hard and soft landscape works (Condition 3), a Construction Method Statement (Condition 8) and a scheme to avoid contamination (Condition 9) had been agreed in writing with the Appellant.
There is an issue about whether the development did indeed lawfully begin within the period specified in Condition 1 to which I have referred. The Second Respondent's case is that the demolition of the original buildings on site began lawfully on 20 November 2010 or at some stage thereafter within the 3-year period from the date of the planning permission. The Appellant's case is that it was never lawfully begun. I will return to this issue in due course.
Development on the site did indeed proceed, but as the description in paragraph 3 above indicates, the Second Respondent added a tenth residential unit and extended the basement area as a result of which the development exceeded that which was permitted by the permission to which I have referred.
It is of some relevance to note that the Second Respondent was engaging actively with the Appellant during the whole period up until the issue of the EN on 13 November 2013 and was in receipt of some favourable (albeit non-binding) indications from the Appellant as to the construction of the 10 th unit. Nonetheless, it built the additional unit and extended the basement without the formality of planning permission.
The Appellant confirmed in a letter dated 5 March 2010 that Condition 8 had been discharged and by letter dated 24 May 2011 that Conditions 2 and 3 were discharged. That letter indicated that Condition 9 could not be discharged at that time because there were other matters to be addressed.
The Enforcement Notice
The breach of planning control alleged in the EN was identified as follows:
"Without planning permission operations consisting of the construction of ten 3-storey town houses, foundations, undercroft parking and basements."
The relevant parts of the EN were in the following terms:
3. The breach of planning control alleged
It appears to the Council that the above breach of planning control has occurred within the last four years.
4. The reasons for issuing this notice
The works were commenced in November 2010 and are still on-going today. They are not yet substantially complete.
On 27 May 2008, planning permission was granted on appeal (APP/K3605/A/08/2062919) for "… demolition of existing offices and erection of nine 3 storey residential units with basement parking at Royal Thames House, Portsmouth Road, Thames Ditton, in accordance with the terms of the application Ref. 2007/2165 dated 10 August 2007, and the plans submitted …"
The works that have been carried out relate to the development of 10 residential units, not the 9 permitted and do not accord with the submitted plans (foundations and piling are not as approved and basements and car parking areas extend significantly beyond what was approved).
Enforcement action is required because the Council does not consider that it is appropriate to permit this development to proceed without planning permission. Local authorities have an administrative duty to control development in the public interest, particularly where the development has impacts that require mitigation and which gives rise to collection of the Council's Community Infrastructure Levy (CIL).
The National Planning Policy Framework advises (at paragraph 207) that, "effective enforcement is important as a means of maintaining public confidence in the planning system". The Commissioner for Local Administration (the local ombudsman) has held, in a number of investigated cases, that there is "maladministration" if the local planning authority fails to take enforcement action which is plainly necessary.
In deciding whether it is expedient to take enforcement action the Council must regard to the provisions of the Development Plan and to any other material considerations.
In the absence of an express grant of planning permission for the development the Council will be unable to collect CIL in accordance with Core Strategy Policy CS28 and the Council's Developer Contributions SPD (the Council has adopted a CIL tariff of £125 per sqm (net internal floor space) for all new residential development). It would be unacceptable for the Council's CIL to be avoided by unauthorised development.
Similarly, Policy CS21 of the Council's Core Strategy requires that development resulting in 6–14 residential dwellings should provide 30% on-site affordable housing. The unauthorised development is for 10 units but fails to make provision towards affordable housing in contravention of Policy CS21.
The unauthorised development that has been carried out may have adverse impacts for future residents and occupiers of neighbouring properties due to the potential impact from/on flooding as a result of the unauthorised underground car parking and basements contrary to Core Strategy CS26.
Necessary pre-development appraisals and analyses (possible flooding, contamination, harm to amenity of occupiers) have not been carried out in respect of the unauthorised development, and it will not be possible to control the development to adequately mitigate its impacts without an express grant of planning consent and the imposition of conditions.
The requirements of the EN were as follows:-
"(i) Demolish the 10 unauthorised units and associated underground car parking and basements; and
(ii) Remove from the Land all building materials and rubble arising from compliance with requirement (i)."
The period specified for compliance with the above requirements was 9 months.
The appeal to the Secretary of State
This took place on the basis of written representations.
The Second Respondent's case was advanced by Robinson Escott Planning LLP, Chartered Town Planners and Development Consultants, who submitted an 'Appellant's Statement' dated 23 January 2014. Attached to it were various communications between the Second...
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...v Secretary of State for Communities and Local Government [2012] EWHC 3473 (Admin) and Elmbridge Borough Council v Secretary of State for Communities and Local Government and Giggs Hill Green Homes Ltd. [2015] EWHC 1367 (Admin). 27 As the authorities show, there will be many cases where gro......