Kapur v Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 2010 |
| Neutral Citation | [2010] EWHC 3431 (Admin) |
| Docket Number | CO/5237/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 December 2010 |
[2010] EWHC 3431 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: HHJ Sycamore
(Sitting as a Deputy High Court Judge)
CO/5237/2010
Mr B Tankel appeared on behalf of the Appellant
Miss L Busch appeared on behalf of the 1 st Respondent
(As approved)
This is an appeal under section 289 of the Town and Country Planning Act 1990 (“the Act”) against the decision of an Inspector, Roger Dyer, appointed by the first respondent, by which the appellant's appeal against an Enforcement Notice issued by the second respondent on 15 October 2009 was dismissed.
The matter was first listed on 27 August 2010 before HHJ McKenna, sitting as a deputy judge of the High Court, when he directed that the matter be adjourned for a rolled up hearing. The matter was listed before me on 25 November 2010 when I heard argument and indicated that the matter would be listed at the earliest possible date for delivery of an oral judgment.
Section 289 provides, so far as is relevant:
“289(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice, the appellant or the local planning authority, or any other person having an interest in the land to which the notice relates, may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court”.
Subsection (6) provides that no proceedings shall be brought except with the leave of the court.
There is no defined threshold for the grant of leave, but I am satisfied that it is appropriate to grant leave in this case.
The relevant history begins with an enforcement notice, served on the appellant by the second respondent on 15 October 2009, alleging a breach of planning control in the following terms:
“Without planning permission, the erection of a brick outbuilding, the approximate position of which is marked blue on the attached plan; a concrete hard standing area to the front of the building, the approximate position of which is marked green on the attached plan; a raised walkway to the south and west elevations, the approximate position of which is marked hatched on the attached plan”.
That was the alleged breach of planning control. The requirements of the notice were as follows:
“Demolish the building which is shown on the plan. Remove from the land all the materials used to construct the building. Take up all the hard standing located TO the front of the building, shown on the attached plan outlined in green. Remove from the land all the materials resulting from the taking up of the hard standing. Demolish the walkway shown on the attached plan hatched in black. Remove from the land all the materials used to construct the raised walk way”.
The period for compliance with the notice was two months.
The appellant appealed against the notice by using the standard form. He dealt with this himself, without professional advice at that stage. The standard form invites an appellant at question E to:
“Please tick which of the following grounds of appeal apply to your case and give the facts in support of each ground chosen”.
The available grounds are set out as (a) to (g).
The appellant ticked box (c), “that there has not been a breach of planning control”, saying this:
“Dear Sir,
with reference to your recent communication, I would respectfully draw to your attention a household planning application submitted to the council on 13 December 2006. The household planning application clearly details, in paragraph 4, an application for 1) a single story rear extension; 2) a garden shed at the rear of the garden”.
None of the other boxes were ticked.
The appellant indicated on the form a preference for an oral hearing, but it was made clear on the form that:
“Although you may indicate a preference for a hearing, the Inspectorate must also consider that your appeal is suitable for this procedure”.
In the event, the matter proceeded by way of the written representation procedure.
In dismissing the appeal, the Inspector recorded that the appellant's case was that the development had been permitted by the council. He found, however, that the application made by the appellant in 2007, and granted in the same year, did not relate to the development forming the subject matter of the notice, saying:
“7…the construction of the shed building started after October 2008, when amendments to permitted development rights came into force. The Town and Country Planning (General Permitted Development) (Amendment) (No 2) (England) Order 2008 (GDPO) provides that development is not permitted if the height of a building, otherwise required for a purpose incidental to the enjoyment of a dwelling house, exceeds 2.5 metres, within 2 metres of the boundary of the curtilage of the dwelling house. In this case, the drawings submitted, and the shed that has been built, exceed 2.5 metres in height and lie within 2 metres of at least two boundaries. The amended order does not affect any development begun before 1 October 2008.
8 By the appellants' statement the work on construction of the outbuilding began in April 2009. They were unable, therefore, to take advantage of earlier permitted development rights. At that stage they did not have the benefit of planning permission, because any application that had been made fell within permitted development rights and did not need to be considered. The appellants are unfortunate in their inability to take advantage of the earlier GPDO. Their submissions about discussions with a building control officer do not assist their cause, because that conversation could not be relied upon to assist their case in terms of planning considerations”.
The appellant advanced two grounds of challenge to the Inspector's decision. In terms first, that the inspector erred in law, in that he found that the shed was not permitted development, on the basis that the works on it post dated October 2008, when it was in fact permitted development. Second, that further, or alternatively, the appellant had the benefit of planning permission for an outbuilding and that, whilst the shed which he built on the site was not permitted by that permission, the Inspector should have varied the requirements of the enforcement notice to reflect this consent, and should have amended the requirements of the notice to make it obvious that the appellant was permitted to retain the approved outbuilding on the land.
There is no dispute that the information before the Inspector from the appellant was to the effect that the works on the shed were commenced in April 2009. He said this in the grounds and facts section of the enforcement notice appeal form
“In or around November 2007 I received another approval notice from the Planning Department, reference number: 07/02606. However, on this occasion there was no reference made to the rear garden shed. I immediately called your office and spoke to Mr David Johnson, who informed me that the reason the rear garden shed was omitted from the approval notice was that the proposal falls under the Council's permitted build scheme, and therefore no planning application was necessary. To this end, I acknowledged his comments and commenced works on phase one of my program.
In April 2009 we commenced works on the rear garden shed. On inception I contacted the Building Control Department and requested a site visit…..”
This suggests that the appellant commenced phase 1 of his program in late 2007 but only started work on the shed in April 2009.
The appellant has filed a witness statement dated 30 April 2010, in which he seeks to clarify what was said in the enforcement notice appeal form. At paragraph 8 of the statement he says:
“I started works on the project. In January 2008, I hired a mechanical digger which dug the foundations for the extension and garden shed. The foundations were dug for both at the same time because once the extension was erected I would not be able to get the digger into the rear garden. The foundations for the shed are 1.2m deep and 0.8 m wide, and approx 7m X 5m in length. In addition the ground was levelled and the trees and ground routes were removed from this part of the garden to make way for the shed”.
At paragraph 9:
“In April 2009, builders were instructed to fill in the foundations for the shed. This was what I meant when I stated in the letter to the Inspector that in April 2009 'we commenced works on the rear garden shed'. I did not know at the time that legally speaking, development is 'begun' when the foundations are dug”.
At paragraph 14 of the same statement he says this:
“The shed continued to be erected. After it was completed I received unscheduled site visits from Council enforcement officers. They Informed me that in their opinion, I needed planning permission for the shed and that it was no longer permitted development because of a change in the law”.
He goes on to say, at paragraph 16 of the statement, the following:
“I appealed to the Inspector. I asked for a hearing so that I could present my case in person to the Inspector. The Planning Inspectorate said no. The appeal was determined by the Inspector in writing. He never asked me when I had “begun” the garden shed, nor what the words 'we commenced works on the rear garden shed' in my letter meant. Had he...
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