Mr Leslie Baker v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 25 March 2021 |
| Neutral Citation | [2021] EWHC 1983 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3550/2020 |
[2021] EWHC 1983 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
IN THE MATTER OF AN APPLICATION UNDER
SECTION 289 TOWN AND COUNTRY PLANINNG ACT 1990
Royal Courts of Justice
Mrs Justice Thornton
CO/3550/2020
and
Miss K. Olley (Instructed by Kingsley-Smith Solicitors LLP) appeared on behalf of the Appellant.
Miss N. Pindham (instructed by the Government Legal Department) appeared on behalf of the Respondent
( )
This is the appellant's substantive appeal under s.289 of the Town and Country Planning Act against the decision of an inspector appointed by the Secretary of State, dated 24 August 2020, dismissing his appeal under s.174 of the Act against the enforcement notice served by the local planning authority on 31 May 2019.
By way of factual background, the site in question is land at 8 Austin Avenue, Bromley. Present matters concern a building erected as a link between two separate outbuildings sited within the rear garden of 8 Austin Avenue, which is a family dwelling house.
For present purposes, events prior to the grant of the enforcement notice under scrutiny may be summarised as follows. The appellant issued an application for retrospective planning permission for the use of the outbuildings for ancillary accommodation. Permission was refused by the local planning authority. The appellant appealed. His appeal was dismissed on 14 March 2018 by Inspector Evans. In May 2018, the local planning authority issued an enforcement notice in relation to the annex as a whole (i.e. both outbuildings and the link extension). The appellant appealed and the enforcement notice was withdrawn on the basis that the outbuildings were immune from enforcement action.
The current enforcement notice
The current enforcement notice was served on 31 May 2019, focusing on the link building, not the outbuildings. The matters said to constitute breach of planning control are,
“Without planning permission, the construction of a link extension between two outbuildings at the rear of the land and the material change of use of the extended and combined current outbuilding into a self-contained unit of habitable accommodation.”
The reasons given in the notice state that the outbuildings said to comprise the link extension and the former outbuildings constitutes a separate unit of a residential accommodation and is a cramped form of development. The construction of the link extension is said to have resulted in a large dominant and incongruous structure which is out of keeping with the local area. The notice requires the link extension to be removed and the two former outbuildings to be reinstated to their former condition prior to the link extension and use of the outbuildings as a self-contained until of accommodation is to cease and use is to revert to the lawful use ancillary to the main dwelling on the land.
The appeal under s.174
The appellant appealed under s.174 of the Town and Country Planning Act on grounds (a) planning permission ought to be granted, (c) there had not been a breach of planning control as alleged and (f) in relation to the notice requirements.
As regards ground (c), the appellant disputed there had been any material change of use of the land.
The inspector's decision
The inspector took matters on ground (c). no breach of planning control, because no material change of use, as follows. He identified that the onus of proof on matters of fact is on the appellant and is on the balance of probabilities (DL7). At DL10, he set out the principal consideration in this particular case as
“whether the development amounts to a material change of use constituting development requiring the benefit of planning permission. Accordingly, an assessment is necessary as to whether the use of the building constitutes a separate self-contained dwelling house and, therefore, the creation of a separate planning unit.”
At DL12 he recorded that his site inspection revealed a settled and permanent residential unit. At DL13 he acknowledged that
“while the building's internal accommodation has facilities consistent with that referred to in Gravesham the key issue is whether it is occupied in such a way as to form a separate planning unit.”
Having considered the relevant legal principles, he referred to the case of Whitehead v. The Secretary of State for the Environment in which accommodation for a housekeeper was incidental to enjoyment of the main dwelling (DL16).
At DL17, he remarked that a granny annex would normally be regarded as part and parcel of the use of the main dwelling. At DL18, he referred to the case of Uttlesford which he summarised as
“The Court considered that, even if the accommodation provided facilities for independent day-to-day living, it would not necessarily become a separate planning unit from the main dwelling. It would be a matter of fact and degree.”
At DL19, he turns to the appellant's case as follows.
“DL19. In this particular instance the building is apparently occupied by the appellant's daughter and her family, but, although it has not been severed from the main dwelling by the provision of an identifiable and independent residential curtilage, I find that the totality of the building's internal facilities is an important factor to be taken into account here. Further, there is an absence of detail provided by the appellant as to the degree of interdependence between the living accommodation in the building and the main dwelling and how the extended family might function as a single household.
20 Instead the information that has been advanced lacks clarification and precision. Access to the building via a pathway set within the rear garden is gained from a gate to the side of the main dwelling which is secured by a Yale-type lock. In this regard, I note that a interested party has made representations suggesting there are comings and goings via this gate at late hours rather than through the main house.
21 It is interesting to note the previous inspector's findings in the s.78 appeal from 2018. She found, consistent with my assessment, that this generously-sized building with accommodation and facilities, apparently set up for independent living, appears to be used independently of the main house. I, therefore, find that a separate unit of occupation has been carved out of No 8's original planning unit which itself has resulted in the creation of a new planning unit.”
Then at DL25,
“Bringing all the relevant factors together, as the building contains all the necessary facilities for day-to-day living and with due regard to all the evidence provided, I conclude, on the balance of probability, that the use of the single building created by the erection of the link amounts to a separate and independent residential use as a matter of fact. Such a use constitutes a material change of use in planning terms and is, therefore, development within s.55 of the Act. Since planning permission has not been granted for the development, it is, in effect, a breach of planning control.”
As to ground (a), the inspector began his assessment by considering whether the appellant was stopped from opening fresh litigation in respect of matters which should have been brought forward previously, including the case of Henderson v. Henderson. He concluded that the previous inspector's decision has to represent a clear material consideration and that he has had due regard to her comments (DL32).
At DL33 to 34, he drew together his assessment of his site inspection and planning judgment as to the development onsite.
At DL35, he addressed the appellant's fallback case that a new annex building could be erected, but cited the Council's reliance on the case of Evans and concluded at DL36 that, given that he had found an unauthorised material change of use had occurred, the principle in Evans applied and permitted development rights did not exist, so could not be regarded as a fallback. The inspector dismissed the appeal and upheld the enforcement notice on 24 August 2020, subject to a minor amendment to the steps required.
The legal framework
The legal framework is not in dispute. The Secretary of State's skeleton argument reads as follows at paras.23 to 35:
Statutory Appeal
“23 Any person with an interest in land which has been the subject of an enforcement notice issued by the local planning authority has a statutory right to appeal that notice to the Respondent, by s.174 of the 1990 Act (so far as relevant):
‘ 174.—Appeal against enforcement notice
(1) 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, whether or not a copy of it has been served on him.
(2) An appeal may be...
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