Louis Silver v Secretary of State for Communities & Local Government and Another Barrie Tankel (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 01 August 2014 |
| Neutral Citation | [2014] EWHC 2729 (Admin) |
| Docket Number | Case No: CO/1623/2014 & CO/1626/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 August 2014 |
and
[2014] EWHC 2729 (Admin)
The Honourable Mr Justice Supperstone
Case No: CO/1623/2014 & CO/1626/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Fraser-Urquhart for the Claimant
Estelle Dehon (instructed by Treasury Solicitor) for the First Defendant
The Second Defendant was not represented and did not participate
Jonathan Wills (instructed by Messrs Jaffe Porter Crossick LLP) for the Interested Party
Hearing date: 16 July 2014
Introduction
The Claimant, Mr Silver, seeks an order quashing two decisions of an Inspector appointed by the First Defendant, the Secretary of State for Communities and Local Government, in relation to the development of a property situated at 45 Lancaster Grove, London, NW3 4HB ("the Property"). Both decisions are contained in a single decision letter dated 3 March 2014.
By the first decision the Inspector dismissed the Claimant's appeal under s.78 of the Town & Country Planning Act 1990 ("the 1990 Act") and refused to grant retrospective planning permission for the construction of a two-storey extension at basement and ground floor level at the Property ("the Planning Appeal"). This decision is challenged by way of an application under s.288(1) of the 1990 Act.
By the second decision the Inspector dismissed the Claimant's appeal under s.174 of the 1990 Act ("the Enforcement Appeal") and upheld an enforcement notice issued by the Second Defendant, the London Borough of Camden ("the Council"), in respect of the construction of a two-storey extension at basement and ground floor level at the Property. This decision is challenged by way of an appeal under s.289(1) of the 1990 Act.
These challenges are heard together, by way of a hearing of the s.288 application and a "rolled-up" hearing of the s.289 appeal.
Factual Background
The Claimant is the owner of the Property which contains three self-contained flats in a two-storey red brick detached building, with a rear garden containing a number of established trees. The Property lies within the Belsize Conservation Area ("the BCA") which, in turn, is within the administrative area for which the Council is the Local Planning Authority.
By a decision notice dated 15 January 2008 the Council granted planning permission ("the 2008 Permission") for the following development of the Property:
"Excavation of basement level with front light well enclosed by railings and with bridge over to front entrance door all in connection with additional accommodation for the ground floor level flat; as revision to planning permission granted 21/08/07… which allowed for demolition of existing single storey rear extension and erection of a new two storey rear extension at basement and ground floor level for the existing flat." ("The 2008 Scheme").
A condition of the permission required development to begin no later than 15 January 2011 (Condition 1). Conditions 3 and 4 provided as follows:
"3. All trees on the site, or parts of trees growing from adjoining sites, unless shown on the permitted drawings as being removed shall be retained and protected from damage to the satisfaction of the Council. Details shall be submitted to and approved by the Council before works commence on site to demonstrate how trees to be retained shall be protected during construction work: such details shall follow guidelines and standards set out in BS5837:2005 'Trees in Relation to Construction'. The protection measures shall not be carried out otherwise than in accordance with the details thus approved.
…
4. No development shall take place until full details of hard and soft landscaping and means of enclosure of all un-built, open areas have been submitted to and approved by the Council. The relevant part of the works shall not be carried out otherwise than in accordance with the details thus approved."
The 2008 Scheme was a revision to an earlier planning permission, granted in August 2007, for a two-storey rear extension. The 2007 permission was itself based on a previous permission, granted in 2005. The plans used for both the 2005 and 2007 permissions stated that they were drawn at a scale of 1:50, but some were actually scaled at 1:100. This error in the scale of the floor plans was not noticed by the Council. It is now acknowledged by the Council, as was noted by the Inspector (see decision letter at para 10), that the 2008 permission was for 1:100 scale development as opposed to 1:50 scale development.
It appears that in late 2010 the Claimant decided that he wished to make alterations to some elements of the design of the rear extension comprised in the 2008 Scheme. Accordingly he engaged a builder, Mr Ansalem. As to what happened next the Inspector records the following in the decision letter at paragraph 31:
"… Mr Ansalem immediately advised the [Claimant] that the planning permission for the 2008 Scheme must be begun no later than 15 January 2011 (which was then little more than a month away), and so he needed to undertake work to ensure that permission did not expire. To this end the services to a rear extension were disconnected and that extension was duly demolished. By mid-January 2011 the only other work undertaken were basement excavations."
Subsequently when the Claimant decided on the precise extent and nature of alterations which he wished to make to the 2008 Scheme he instructed an architect to submit an application for planning permission so that they could be effected. The application that was submitted later came to be withdrawn. Officers considered that no works of implementation had taken place before 15 January 2011 and, accordingly, that a fresh application for permission ought to be submitted as opposed to an application seeking amendments to an extant permission.
Council Officers subsequently visited the Property and advised the Claimant that the works he had carried out on the Property did not benefit from planning permission and were therefore unlawful. By an application dated 6 March 2012 the Claimant sought permission for
"Excavation of basement extension to rear and erection of rear ground floor level extension above all in connection with existing flat (Class C3)(Retrospective)." ("The 2012 Scheme").
By a decision letter dated 13 May 2012, the Council refused to grant retrospective planning permission for this development. Instead the Council decided to take enforcement action in respect of the development comprised in the application for retrospective planning permission.
On 6 August 2012 an enforcement notice was served on the Property ("the Notice"). The Notice alleged that without planning permission the following breach of planning control had occurred at the Property within the last four years:
"Excavation of basement extension to rear and erection of rear ground floor level extension above all in connection with existing flat."
The Notice required, within a period of nine months of its effective date of 17 September 2012, the complete removal of the rear ground and basement floor level extension and the return of the building to the condition shown on the plans of the Property as submitted in connection with the retrospective application for the 2012 Scheme.
Before 17 September 2012 the Claimant brought the Planning Appeal and the Enforcement Appeal.
Having initially proceeded by way of the written representations procedure the combined Planning Appeal and Enforcement Appeal were converted into conjoined inquiries. The Inspector held a public inquiry from 7–9 January 2014 and undertook a site visit on 9 January 2014. A Rule 6 Party, the Interested Party, Mr Tankel, took part in the public inquiry as an objector.
The Inspector issued the decision letter on 3 March 2014. He dismissed the Planning Appeal and refused to grant planning permission for the existing Development on the basis that it: (1) would cause unjustified harm to the character and appearance of the BCA, (2) would cause harm to the living amenity of properties neighbouring the Property, and (3) may adversely affect underground drainage and the structure of adjacent buildings. He dismissed the Enforcement Appeal on the basis that it would not be appropriate to require compliance with the 2008 Permission.
The Decision Letter
The Inspector identified at paragraph 14 the main issues in relation to the Planning Appeal ("Appeal A") and at paragraph 62 the main issues in relation to the Enforcement Appeal ("Appeal B"). No criticism is made of the way in which the Inspector set out the main issues in relation to each appeal. They were:
" Appeal A…
14.(i) whether the scheme would preserve or enhance the character or appearance of the Belsize Conservation Area;
(ii) the effect on the living conditions of residents at 43a and 47 Lancaster Grove;
(iii) whether harm results from the lack of a Basement Impact Assessment (BIA) and
(iv) if any harm would be caused to the conservation area whether there are public benefits or other material considerations that outweigh the harm.
…
Appeal B…
62. The main issue with this appeal is whether the steps required to comply with the notice are excessive."
In relation to Appeal A the Inspector reached five conclusions that are not challenged:
i) The extension would adversely affect the contribution the building and its garden made to the BCA (paras 23–25);
ii) The Scheme...
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