N R Algul Ltd v Secretary of State for Housing and Local Government
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 04 July 2019 |
| Neutral Citation | [2019] EWHC 2023 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2213/2019 |
| Date | 04 July 2019 |
[2019] EWHC 2023 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Keyser Q.C.
(Sitting as a Judge of the High Court)
CO/2213/2019
Miss C. Colquhoun (instructed by Fortune Green Legal Practice) appeared on behalf of Applicant.
Mr L. Wilcox (instructed by Government Legal Department) appeared on behalf of the First Respondent.
THE SECOND RESPONDENT was not present or represented.
JUDGE Keyser Q.C.
Introduction
This is an application for permission to challenge, under section 289 of the Town and Country Planning Act 1990, the Secretary of State's decision dated 10 May 2019 to dismiss the applicant's appeal against an enforcement notice issued by the local planning authority, the second respondent, on 2 June 2018. Although this is only a permission hearing, the hearing itself has lasted two hours. In deference to the length and detail of counsel's submissions, I shall give a reasonably full judgment.
The enforcement notice relates to 2 Fairfield Crescent, London NW9, which is an end-of-terrace two-storey residential property of which the applicant is the owner. The enforcement notice identified two alleged breaches of planning control: first, the erection, without planning permission, of single- and two-storey side-to-rear extensions, roof extensions and basement; second, the erection, without planning permission, of a building in the rear garden. The matters showing that it was expedient to issue the notice were stated as follows:
“It appears to the Council that the unauthorised development took place within the last four years. The unauthorised development, by virtue of its size, siting and poor design, results in an overly-dominating development with extensions that appear awkward and not in keeping with the context, scale, character and appearance of the host property or the street scene. It also detracts from the living conditions of neighbouring occupiers in relation to their outlook. This is contrary to [various identified policies].
The overall size and scale of the unauthorised basements results in the loss of the provision of a suitable rear garden to the premises to the detriment of the occupiers of the property and the general amenity of the area. The unauthorised basement extension also results in an unacceptable level of overlooking and a loss of privacy to the neighbouring premises from the resulting raised platform. This is contrary to [various identified policies].
The unauthorised building in the rear garden, by virtue of its excessive height which is in excess of 2.5 metres and its close proximity to neighbouring boundaries appears as an obtrusive and overbearing feature and it is out of keeping with the area. This is contrary to the objectives of [various identified policies].”
Schedule 4 to the notice stipulated what was required “to remedy the breach of planning control”; it required, in short, complete demolition, removal and restoration.
The applicant appealed against the enforcement notice under section 174 of the Act (as amended) on the grounds (a) that permission ought to be granted for the development and (f) that the steps required by the enforcement notice were excessive.
The Legislative Framework
It would overload the judgment to go through too much of the statutory material, but I refer briefly to some relevant provisions. Section 172 refers to the issue of an enforcement notice where there has been a breach of planning control and it is expedient to issue the notice. Section 173 deals with the contents and effect of the notice. Subsection (4) identifies the purposes to be achieved by the notice, which are (a) remedying the breach—that can be done in various ways, but the relevant part here is by restoring the land to its condition before the breach took place—or (b) remedying any injury to amenity which has been caused by the breach. Subsection (11) provides,
“(11) Where (a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and (b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.”
Section 174, which deals with appeals, provides in part:
“(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 brought on any of the following grounds—
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted;
…
(f) that 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.”
(It is to be noted that the alternatives in ground (f) mirror the alternative purposes that may be achieved by an enforcement notice under section 173(4).) Section 177 (1) provides in part:
“On the determination of an appeal under section 174, the Secretary of State may—(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters …”
Section 177 (1C) provides:
“If the land to which the enforcement notice relates is in England, subsection (1)(a) applies only if the statement under section 174(4) specifies the ground mentioned in section 174(2)(a).”
The Decision
The appeal was dealt with by written representations and was determined by the inspector's decision dated 10 May 2019, after she had conducted a site visit on 29 March 2019. I shall mention some preliminary matters in due course.
The inspector dealt with grounds (a) and (f) separately and, within ground (a), dealt with the different parts of the development in turn. In paragraph 7, dealing with ground (a), she identified that the main issue was the effect of the development on (1) the character and appearance of the host dwelling and surrounding area and (2) the living conditions of occupiers of the host dwelling and neighbouring properties with particular regard to outlook. Those matters are clearly distinguished in the decision.
Under ground, (a) the inspector considered, first, the extensions. In paragraphs 8 to 11, she considered character and appearance. At paragraph 10, she said that the development was “bulky and oversized creating a dominant appearance that is not subservient to the host dwelling.” She described the relationship to the host dwelling as “an incongruous addition” creating “an awkward and dominant development that is not in keeping with its setting.” She said that the development did not meet the thresholds set out in Supplementary Planning Document 2 (SPD2). Regarding other buildings in the vicinity, the inspector said that similar development was not so widespread as to be characteristic of the area and she commented, “I do not know the particular circumstances of the sites identified and have considered this appeal on its own particular facts.”
In paragraphs 12 and 13, the inspector considered living conditions with respect to outlook and concluded that the development did not cause undue harm to the living conditions of neighbours, with particular regard to outlook. In paragraph 14, her conclusion was that the extension caused “undue harm to the character and appearance of the host dwelling and surrounding area and did not accord with relevant policies.” She held that that harm outweighed the absence of harm to living conditions and meant that planning permission should not be granted.
In paragraphs 15 to 21, the inspector turned to ground (a) as it pertained to the basement; I will say more about the basement in due course. She said in paragraph 17 that the basement was disproportionately large in the context of its domestic setting, that it did not complement its setting and that it did not satisfy the Council's Planning Guidance in terms of its size and location. In paragraph 21, she concluded: “the basement causes undue harm to the character and appearance of the host dwelling and surrounding area and does not accord with relevant policies.” She said that she had found that the development was unlikely to cause undue harm...
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