Manchester City Council v The Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 10 May 2022 |
| Neutral Citation | [2022] EWHC 1062 (Admin) |
| Docket Number | Case No: CO/2387/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1062 (Admin)
Mr Justice Lane
Case No: CO/2387/2021
IN THE HIGH COURT OF JUSTICE
MANCHESTER CIVIL JUSTICE CENTRE
QUEEN'S BENCH DIVISION
PLANNING COURT
In the matter of An Appeal under Section 289 of the Town and Country Planning Act 1990
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms A Graham Paul (instructed by The Solicitor, Manchester City Council) for the Claimant
Mr C Streeten (instructed by The Government Legal Department) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 16 March 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Lane
This is an appeal under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) in respect of an order of the first respondent dated 14 June 2021, validating the second respondent's planning enforcement appeal concerning premises at 24 Broadway, Manchester, M40 3LN and accepting that the enforcement notice appeal should proceed on ground (a) of section 174 (2) of the 1990 Act.
Section 174(1) of the 1990 Act provides that a person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice. Section 174(2) allows an appeal to be brought on any of the grounds specified in paragraphs (a) to (g) of that subsection. The ground in paragraph (a) is:-
“(a) that, in respect of any breach of planning control which may be constituted by the matter stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;”
The validation order followed correspondence between the appellant and the first respondent, in which the appellant contended that the second respondent's enforcement notice appeal should not proceed under ground (a) because it is precluded from doing so by reason of section 174(2A) and (2B) of the 1990 Act. Notwithstanding that no reasons were given in the 14 June 2021 order, the appellant and the first respondent are agreed that the latter's decision to allow the ground (a) appeal to proceed stems from his earlier position, as expressed in the correspondence.
It is also now agreed that the appropriate means of challenge is an appeal under section 289, rather than a judicial review. Permission to bring such an appeal was granted, following an oral hearing, by HHJ Bird, sitting as a Judge of the High Court, on 16 September 2021.
Section 174 (2A) & (2B) of the 1990 Act provide as follows:-
“(2A) An appeal may not be brought on the ground specified in subsection (2)(a) if—
(a) the land to which the enforcement notice relates is in England, and
(b) the enforcement notice was issued at a time—
(i) after the making of a related application for planning permission, but
(ii) before the end of the period applicable under section 78(2) in the case of that application.
(2B) An application for planning permission for the development of any land is, for the purposes of subsection (2A), related to an enforcement notice if granting planning permission for the development would involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control.”
In granting permission, HHJ Bird observed there was no dispute that the enforcement notice was issued after an application for planning permission had been made. He held that it was arguable the application was a related application, within the meaning of section 174(2B).
Factual background
The factual background is essentially as follows. 24 Broadway is a detached two-storey brick-built slate-roofed dwelling house, on the western side of the A663, about four miles north-west of central Manchester. Although the ground floor was previously in commercial use, in May 2009 planning permission was granted for change of use of the ground floor to use as a house. Accordingly, 24 Broadway is, at present, a single dwelling house for planning purposes.
On 12 February 2021, the second respondent sought planning permission for what was described as “proposed extension at first floor, loft conversion with rear dormer, including change of use of partial ground floor to shop”. The appellant categorised this as follows:-
“Part retrospective application for the change of use of ground floor to a shop (Class E) together with elevational alterations to the front, erection of first floor rear extension and installation of rear roof dormer to create a 3 bedroomed duplex, flat (Class C3).”
The retrospective element comprised a first-floor rear extension and rear roof dormer, which had already been constructed.
On 8 April 2021, the appellant issued an enforcement notice in respect of 24 Broadway. For our purposes, the relevant provisions of the notice were as follows:-
“3. THE BREACH OF PLANNING CONTROL ALLEGED
Without planning permission, erection of first floor rear extension and installation of rear roof dormer.
4. REASONS FOR ISSUING THE NOTICE
It appears to the Council that the above breach of planning control has occurred within the last four years.
The Council considers that it is expedient to issue this notice because the first floor rear extension and rear roof dormer results in an overly dominant feature at the rear of the property creating an unsatisfactory relationship with neighbouring properties resulting in overbearing and overshadowing, particularly on 30 Broadway and 67 Heppleton Road.
The siting, scale and appearance of the development has resulted in an overly dominant and incongruous feature at the rear of the property which is out of character and detrimental to the visual amenity of the property and the wider area and as such the retention of the development would be contrary to the Policies SP1, EN1 and DM1 of the of the Core Strategy of the Local Development Framework and Saved Policy DC1 of the Unitary Development Plan for the City Of Manchester.
5. WHAT YOU ARE REQUIRED TO DO
1) Demolish the first floor rear extension and return the property to its condition before the breach took place as shown in the attached image ENF/01, using materials to match the original rear elevation, together with reinstatement of the roof of the remaining single storey rear extension, using materials that are similar in appearance to the original roof, in terms of size, colour and texture.
2) Remove the rear dormer in its entirety and return the roof to its previous condition before the breach took place as shown in the attached image ENF/01, using materials that are similar in appearance to the original roof, in terms of size, colour and texture.
3) Remove from the land all building materials, rubble and waste arising from carrying out the above steps.”
On 9 April 2021, the appellant refused the second respondent's application of planning permission, in the following terms:-
“The first floor rear extension and rear roof dormer results in an overly dominant feature at the rear of the property creating an unsatisfactory relationship with neighbouring properties resulting in overbearing and overshadowing, particularly on 30 Broadway and 67 Heppleton Road to the detriment of residential amenity.
The siting, scale and appearance of the development has resulted in an overly dominant and incongruous feature at the rear of the property which is out of character and detrimental to the visual amenity of the property and the wider area and as such the retention of the development would be contrary to the Policies SP1, EN1 and DM1 of the of the Core Strategy of the Local Development Framework and Saved Policy DC1 of the Unitary Development Plan for the City Of Manchester.”
The second respondent did not appeal against the refusal of planning permission. On 4 May 2021, however, she appealed against the enforcement notice on the grounds specified in section 174(2)(a) and (f) of the 1990 Act. I have set out ground (a) above. Ground (f) is that:-
“(f) the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;”
The delegated officer report in respect of the planning application explains the appellant's reasoning in more detail. The proposed development comprising “an extension to create a residential dwelling and the creation of additional retail floor space at ground floor level” was not considered to be acceptable as it would, “by virtue of the siting, scale and appearance of the rear extension and dormer, create an overly dominant and incongruous feature at the rear of the property to the detriment of visual and residential amenity.” Although the first floor rear extension did not extend into the main roof, when combined with the dormer, the first floor extension and dormer created “a large boxy feature to the rear which appears overly dominant and is not subservient to the existing property”.
Under the heading “Residential Amenity”, the report said that by virtue of the “height, width and rearward projection of the first floor extension, the development has created significant bulk and built development on the neighbouring boundaries”. This had had a detrimental effect on neighbouring properties “particularly numbers 30 Broadway and 67 Heppleton Rd which can be readily viewed from the rear habitable room...
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