Juliette Benson v The Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton |
| Judgment Date | 18 September 2018 |
| Neutral Citation | [2018] EWHC 2354 (Admin) |
| Date | 18 September 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4430/2017 |
[2018] EWHC 2354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/4430/2017
Anjoli Foster (instructed by J. Benson Solicitors Ltd) for the Appellant
Jack Parker (instructed by Government Legal Department) for the First Respondent
No appearance for the second Respondent
Hearing date: Thursday 5 July 2018
Judgment Approved
This is an appeal under section 289 of the Town and Country Planning Act 1990 (as amended) against the decision of a planning Inspector, Mr Andrew Hammond, dated 29 August 2017. That decision in turn dismissed an appeal by the appellant against an Enforcement Notice issued by the Second Respondent on 11 November 2016. The breach of planning control alleged in the notice was that without planning permission there had been a material change of use of premises at 113 Hillside Avenue, Borehamwood, Herts into two self-contained residential units. The notice required the cessation of the use of the premises as two self-contained residential units and consequential reinstatement.
113 Hillside Avenue, Borehamwood is a semi-detached house in a street of similar houses. It belongs to Mr and Mrs Benson: Mrs Benson, the appellant, is a solicitor in practice and in these proceedings is represented by her own firm; Mr Daniel Benson features in these proceedings, as will be seen, but is not a party to them. Building works in 2007 replaced storage at the side of the house with a single-storey extension filling the space between the house and the site boundary and consisting, according to the plans then deposited, of a guest bedroom with en suite bath and a “play area”. It is common ground that at some period or periods since that date the extension then built has been used as a separate independent dwelling. It is also common ground that, at some stage, kitchen facilities were introduced to it. In 2016 the appellant applied to the local planning authority for retrospective planning consent for use of the extension, described as a “studio flat”, as a self-contained unit. The decision to refuse permission is dated 28 April 2016. The appellant appealed, and the appeal was dismissed in a decision of a planning Inspector on 26 October 2016. The Enforcement Notice, requiring the cessation of the use of 113 Hillside Avenue as two self-contained units, followed. It was served specifically and separately on Mr and Mrs Benson, as well as on the “Owner/Occupier” of the premises and a bank mortgagee. Mrs Benson appealed against the Enforcement Notice under section 174 of the 1999 Act on the ground, specified in section 174(2)(d):
“That, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by [the matters stated in the notice].”
(There was also an appeal on ground (a), that planning permission ought to be granted, but as the appellant failed to pay the appropriate fee, the appeal on that ground lapsed).
The local planning authority prepared and presented its case in writing in the usual way. There was a certain amount of correspondence from the appellant's side but very little: that was a matter which had to be dealt with at the beginning of the inquiry on 22 August 2017, on which date also the Inspector conducted a site visit. His decision is dated, as I have said, 29 August 2017; there is a separate decision in relation to costs made the same day.
The Law
The Role of the Court
The appeal before me is not an appeal on the merits: it can succeed only on a point of law. The relevant principles were stated by Dobbs J in Knievel v SSCLG [2012] EWHC 322 (Admin) at [11] as follows:
“(1) The Court can interfere with the Inspector's decision if he acted on no evidence or if he has come to a conclusion to which on the evidence he could not reasonably have come, or if he has taken into consideration matters which he ought not to have taken into account or vice versa. It is identical with the position when the Court has power to interfere with the decision of a lower Tribunal which has erred in point of law: See Ashbridge Investments Ltd v MHLG [1965] 1 WLR 1320 at (1326 G/H)
(2) If there were no evidence for a particular finding or if the Tribunal had not taken into account at all a relevant consideration then these could then be grounds of appeal raising a question of law, but the contention that a Tribunal had failed to give adequate weight to evidence or adequate or sufficient consideration to a particular circumstance does not: see ELS Wholesale (Wolverhampton) Ltd v Secretary of State for the Environment [1987] JPL 844 at [845].
(3) If the Inspector's findings are perverse or absurd or ones that no reasonable Inspector could have decided in the way that he did these will also be subject to challenge under the section: see Clark v Secretary of State for the Environment (1993) 65 P & CR 85 at [90] and Forkhurst v Secretary of State for the Environment (1983) 46 P & CR at 89.”
In the words of Newman J in Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions [2011] EWHC 128 (Admin) (endorsed by the Court of Appeal [2002] EWCA Civ 226):
“The review involves examining the evidence but it does not mean examining the evidence with a view to forming its own view about the merits of the case, but only to explore in order to see if the decision is vitiated by legal deficiencies. The Court may not set about forming its own preferred view of the evidence.”
Procedure in an Enforcement Appeal
The rules applicable are the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002. In relation to the issues arising in these proceedings, I need to draw attention first to rule 6(3) which required the appellant to serve on the Secretary of State and any other person served with the Enforcement Notice, a Statement of Case including (this arises from the definition in rule 1(1)) the full particulars of the case which she proposed to put forward at an Inquiry, and a list of any documents which she intended to refer to or put in evidence. Secondly, rule 15 provides that any person who proposes to give (or to call another witness to give) evidence at an Inquiry is required to serve a Proof of Evidence on the Secretary of State and on any person whom the Enforcement Notice was served.
Procedure at the Inquiry itself is governed by rule 17. The appellant, as a person entitled to appear at the Inquiry, is entitled to call evidence; evidence is subject to cross-examination; and the Inspector may refuse to permit evidence, cross-examination or presentation of any matter “which he considers to be irrelevant or repetitious”. If he refuses to allow a person to give oral evidence that person may submit material in writing. Subject to these specific provisions, rule 17(1) provides that the Inspector is to determine the procedure at an Inquiry.
There is a procedural guide to Enforcement Notice appeals. The version before me is dated 23 March 2016. At paragraph 1.9 the timetables for the submission of documents are set out and at 1.9.5 is this:
“Keeping to the timetables is fundamental to an efficient and fair appeal service and we expect everyone to comply with them.”
The next few paragraphs relate to late documents. If documents are received after the deadline, they will “normally” be returned and the Inspector will not see them. There are exceptions in which a discretion to accept late documents might be exercised: these are where there is a new policy, where a relevant decision is made on another case, and where there is new legislation or national policy or guidance. At paragraph 3.1.1, the usual rule is stated again:
“If an appellant introduces late evidence during the appeals process which was not included within the facts and grounds or in the appeal statement… we will usually return it and it will not be taken into account.”
Annex D deals with procedure in relation to Inquiries. D.12 is headed Acceptance of Late Documents in Exceptional Circumstances. In relation to documents submitted late and returned for that reason, D12.2 says that Inspectors do have discretion whether to accept late evidence. The next three paragraphs are as follows:
“D.12.3 Before deciding whether, exceptionally, to accept it, the Inspector will require:
• An explanation as to why it was not received by us in accordance with the rules; and
• An explanation of how and why the material is relevant; and
• The opposing parties' views on whether it should be accepted.
D.12.4 The Inspector will refuse to accept late evidence unless fully satisfied that:
• It is not covered in the evidence already received; and
• That it is directly relevant and necessary for his/her decision; and
• That it would be procedurally fair to all parties (including interested people) if the late evidence were taken into account.
D.12.5 If the Inspector accepts late evidence this may result in the need for an adjournment. Another party may make an application for costs or the Inspector may initiate an award of costs. This would be on the basis that the necessary adjournment had directly caused another party to incur expenses that would not otherwise have been necessary.”
Immunity from Enforcement.
In order to set the evidence in the present case in context, I must briefly set out the law relating to immunity from enforcement.
It is common ground in the present case that the use of the annex as a separate dwelling is a...
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