Ioannou v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 16 December 2013 |
| Neutral Citation | [2013] EWHC 3945 (Admin) |
| Docket Number | Case No: CO/3604/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 December 2013 |
and
[2013] EWHC 3945 (Admin)
Mr Justice Ouseley
Case No: CO/3604/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jonathan Wills (instructed by Kingsley Smith) for the Appellant
Mr Charles Banner (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 21 November 2013
Approved Judgment
This is an appeal under s289 of the Town and Country Planning Act 1990 against the decision of a Planning Inspector on an Enforcement Notice appeal. It raises a point, not without difficulty, about the scope of the powers to grant permission on such an appeal, the steps which can be required to remedy the breach of planning control or harm to amenity and their relationship to alternative schemes. It concerns a single family dwelling house which was converted without the necessary planning permission into 5 self-contained flats.
The notice required that use to cease and various facilities necessary for the use as 5 flats to be removed. The Appellant failed in a prolonged and disgraceful effort to deceive the planning authority about when the use began, and it appears, for a while or in some aspects, in an effort to deceive the Inspector about that as well. But as a fall-back, he argued correctly that, if the enforcement notice were upheld, he would not need planning permission to return the house to use as a single family house, and correctly that he would not need planning permission then to change its use from a single family house into a house in multiple occupation, HMO. He put forward to the Inspector plans for a conversion of the house into 3 flats, which he, the local authority and the Inspector regarded as more desirable than use as a HMO, and as a use which avoided the objection to the 5 flats because of the poor amenities they afforded their occupants. The Inspector did not grant permission for that use nor adjust the steps required to be taken so that a 3 flat conversion could be brought about. He thought that the extended time for compliance with the notice requirements would give time for an application for permission for the 3 flat scheme to be made to the London Borough of Enfield, the local planning authority. That application was made but refused, and that decision was not appealed.
Mr Wills for the Appellant contends that the Inspector concluded, wrongly, that he had no power to bring about the scheme in the way contended for, or failed to consider the full extent of his powers. Mr Banner for the Secretary of State contended that the inspector had concluded that the 3 flat scheme was substantially different from the 5 flat use, and so could not be permitted on the appeal against the use described in the enforcement notice.
The Secretary of State has placed before the Court, subject to the appellant's objection, a witness statement from the Inspector, elucidating, says Mr Banner, and contradicting, according to Mr Wills, the reasoning in his decision letter. I shall deal with that controversy since it appears to be becoming more common for such statements to be put in evidence.
The enforcement notice
The breach of planning control alleged is:
"Without planning permission the unauthorised conversation of the Premises into 5 self-contained residential units (4 x bedsits, 1 x 2 bed flat)."
The reasons for issuing it are that the substandard internal floor areas, poor internal configuration and stacking, the over–intensive use and poor living conditions resulted in the loss of a property better used as a single family dwelling house, contrary to various policies. Planning conditions could not overcome these objections.
The steps required were: "Cease the use of the Premises as 5 separate units of accommodation", the removal of all bar one kitchen area, cooker, gas and electricity meter, and an internal door leading to the first floor flat. The resulting materials were to be removed from the premises. The notice gave 2 months for compliance.
The Inquiry
The Appellant appealed, so far as now material, on three grounds as set out in s 174 (2) of the 1990 Act: ground (a) is that permission should be granted for the development struck at by the notice; ground (f) is that the notice requirements exceed what is necessary to remedy the breach of planning control or the amenity harm it does. The precise language of those grounds of appeal is important in the arguments, and I shall set them out later. He appealed also on ground (g) that the period for compliance with the notice was unreasonably short.
The Inspector said that the ground (a) appeal was "that planning permission should be granted for the notice works"; para 41. A number of plans had been tabled at the Inquiry showing alternative layouts with different numbers of flats for the property. "But it is the notice works rather than these other schemes which I must consider under this ground"; para 43.
He then set out the shortcomings of the five flats: they were particularly cramped producing an unacceptable quality of accommodation with little space for furniture other than the beds. The small floor areas fell below those in the relevant Council supplementary guidance and even further below the recently issued guidance in the London Plan. Even in the larger first and second floor flat, the accommodation was still cramped, substandard by reference to the guidance figures, and mostly unusable on the second floor because of the low headroom. The development was "wholly unacceptable and cramped". The notice works "have had a most damaging impact on the living conditions of the occupants of the residential units". He refused planning permission for the notice works.
The Inspector next considered the fall-back argument to see if it persuaded him to grant permission, not for a fall-back position, but for the notice use notwithstanding its deficiencies. In reaching the conclusion that planning permission for the notice works should be withheld, he said in paragraphs 50–52:
"I have taken into account what the Appellant is likely to do following a refusal of planning permission (his fall-back position); that is converting No 15 into a HMO following the building's reinstatement to a single dwelling house. Mr Ioannou made it clear that he wanted to maintain an income from the appeal property and would not be letting, or using, it as a single dwelling house should his present appeal be dismissed.
Although the development plan seeks to protect the borough's stock of family sized houses, like the appeal property, this objective has been severely undermined by the new C4 Use Class, Houses in Multiple Occupation, and the subsequent changes to the Town and Country Planning (General Permitted Development) Order 1995 (as amended)(GPDO) making such a change of use, from C3 to C4, for up to 6 people, permitted development not requiring planning permission (under GPDO, Schedule 2, Part 3, Changes of Use, Class I(b)). Mr Warden admitted that no Article IV Direction was in place here to control such permitted development. But this eventuality, the appellant's likely conversion of any dwelling house to a HMO, does not overcome the harm caused to the living conditions of residents by the appeal works.
The Council's planning witness agreed, under cross examination, that he would prefer a scheme which produced 2 genuine, ground floor single bedroom, studio flats and a 1 bed, first and second floor flat, to that of a HMO. I also agree that such an alternative would be able to provide a more acceptable level of accommodation for residents than that produced by a HMO. But this is not the scheme for determination under this ground of appeal. I will consider the implications of this matter later but under this ground such other material considerations are not sufficient to overcome my conclusions on the main issue which are that planning permission should not be granted."
The Inspector introduced his consideration of ground (f) by summarising it as being that the notice requirements exceeded what was necessary "to overcome the breach of planning control". At paragraphs 54 and 56, he said:
"The notice seeks to return the house to its lawful single dwelling house use. Since it is the provision of 5 sets of kitchens and facilities for cooking, with their associated separate metering and services, which allows the notice uses to proceed, then removal of relevant duplicates seems to me to be the minimum changes which would have to be made to overcome any breach of planning control. The appeal under this ground fails.
In reaching this conclusion I have considered the relevance of the alternative plans already referred to in ground (a) above. The changes suggested by these schemes are not lesser requirements as such and do not directly relate to the allegations the subject of this appeal."
The parties had agreed that the time for compliance should be extended to 6 months. But he added in paragraph 59:
"Although I was not able to grant planning permission for the 3 flats scheme, described in my paragraph 52 above, it is clear that this is the Council's and my preferred option. The extended period for compliance will give time for the Appellant to explore this alternative with the Council and make any appropriate planning application. Bearing in mind the discretion given to the Local Planning Authority to extend any period for compliance, by section 173A of...
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