Pathfield Estates Ltd v London Borough of Haringey
| Jurisdiction | England & Wales |
| Judge | Lady Justice Whipple,Mr Justice Holgate |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWHC 1790 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3692/2022 |
[2023] EWHC 1790 (Admin)
Lady Justice Whipple
and
Mr Justice Holgate
Case No: CO/3692/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Melissa Murphy KC (instructed by Sonn Macmillan Walker Solicitors) for the Appellant
Charles Streeten (instructed by London Borough of Haringey Legal Services) for the Respondent
Hearing date: 27 June 2023
Approved Judgment
Introduction
On 28 March 2008, the London Borough of Haringey, which is the respondent to this appeal (“LB Haringey”), issued an enforcement notice to Pathfield Estates Limited (“Pathfield”), which is the appellant, under section 172 of the Town and Country Planning Act 1990 (“TCPA”). This is the “Enforcement Notice” with which this appeal is concerned. The Enforcement Notice related to land at 13 Bounds Green Road, London N22 8HE (the “Property”). The issue in the appeal is whether the Crown Court was entitled to conclude that the third requirement in that Enforcement Notice, which required Pathfield to restore the Property to use as two flats, had not been waived or varied by LB Haringey in 2008.
Pathfield was convicted at Highbury Magistrates Court of breach of the Enforcement Notice on 28 October 2021. The magistrates committed the matter to the Crown Court for sentence and for the commencement of confiscation proceedings under section 70 of the Proceeds of Crime Act 2002. Pathfield appealed against conviction to the Crown Court. Following a full rehearing, the Crown Court (Miss Recorder E Deacon KC, sitting with Graziella Oragano JP and Gerry Teague JP) dismissed the appeal in a written ruling dated 15 June 2022 (the “ruling”).
This is an appeal by way of case stated from the Crown Court. The case stated was dated 4 October 2022 and it was authored by HHJ Deacon KC (as she had by that time become). That case stated originally posed two questions for this Court. One of those questions has fallen away leaving a single question: whether the Crown Court was correct in deciding that there was sufficient evidence on which it could properly conclude that the requirements of the Enforcement Notice had not been varied (waived or relaxed) pursuant to section 173A TCPA. If the answer to that question is yes, the Crown Court did have sufficient evidence, then it is common ground that this appeal must be dismissed.
Facts
The case stated sets out the nature and history of the proceedings at paragraphs 3 to 6 and the facts at paragraphs 7 to 25. What follows is a summary.
Since the 1990s, the Property has been lawfully used as two flats. During a site visit on 15 November 2007, LB Haringey's officers noted that there had been an unauthorised conversion of the Property into five self-contained flats. That led to issue of the Enforcement Notice on 28 March 2008. The Enforcement Notice contained four requirements:
i) To stop using the property as five self-contained flats.
ii) To remove from the Property all fixtures and fittings in relation to the unauthorised conversion.
iii) To restore the Property as two flats (this is “requirement 3”).
iv) To remove from the Property any materials and debris associated with the unauthorised conversion.
The Enforcement Notice was served on 1 April 2008 and came into effect on 15 May 2008. Thereafter the time for compliance was 3 months.
On 18 August 2008, LB Haringey's planning enforcement officer, Ms Abiola Oloyede, visited the Property and recorded an agreement reached on site with Pathfield's representative, to the effect that the Property would be converted to a single dwelling-house, and that the tenants would be relocated by 1 October 2008 to permit the conversion works to be completed by 10 October 2008. Ms Oloyede made a number of entries after that date in the council's enforcement file, including this entry on 10 October 2008: “ Agreed that the removal of the units and entry door intercom is acceptable for compliance therefore case to be recommended for closure as compliance”.
The use of the Property as flats ceased on 6 October 2008.
The reasons for recommending closure of the case in 2008 were set out by Ms Oloyede in her witness statement. That witness statement was before the Crown Court and was read to the Court as agreed. So far as relevant, that statement recorded:
“On 23 October 2008, I recommended the case for closure… I arrived at that conclusion on the basis that the use as five flats had ceased and the building was to be used as a single dwelling, as proposed by the agent, thereby reducing the number of flats from five separate planning units to one unit. The resulting single unit was considered in my view as being capable of being used as a single dwelling, whilst still meeting the aims of the enforcement notice, which is to remove the over-intensification of the use to the property and to address the unsatisfactory living conditions of the occupants. An outcome of one dwelling in my view was considered reasonable as it was a further reduction of the units stated in requirement 3 of the notice to less than two flats. Also in my view, the owner would still have the option of converting the single dwelling to two flats at a future date and would not be in breach of requirement 3 of the notice if they chose to do this.”
Ms Oloyede sent “closure letters” to a number of interested parties (including the original complainant, the mortgagee and Pathfield's agent) on 23 October 2008, stating:
“…having undertaken a compliance visit, I can confirm that the Enforcement Notice served as a result of the above breach of planning control has now been complied with to the satisfaction of the local planning authority. Accordingly the Council is taking no further action and is recommending that this case be closed.”
No formal notice of any waiver or relaxation of the Enforcement Notice was given by LB Haringey.
Council Tax records show that occupants of four flats at the Property paid Council Tax from March 2008 onwards, with a break from around September 2008 to June 2009. The occupants of a fifth flat paid Council Tax from March 2008 to October 2020, save for a break around October 2008. The occupants of a sixth flat paid Council Tax from June 2009 onwards.
By July 2011, LB Haringey's planning enforcement department was aware that the Property was being used as six self-contained flats. On 11 July 2011, LB Haringey laid an information before the Magistrates' Court alleging an offence contrary to section 181(5) TCPA. Pathfield was convicted but the prosecution was quashed by the Divisional Court ( [2013] EWHC 2053 (Admin), Wilkie J) on grounds that there had been no development of the Property for the purposes of section 181(5), rather there had been a change of use in breach of the Enforcement Notice, which was a more serious offence coming within section 179(2) (see [22] and [26]–[31] of that judgment). Although the case was remitted to the Magistrates Court, no further proceedings were pursued at that stage by LB Haringey.
On 13 April 2020, a person called Yiddel Stern applied for a certificate of lawfulness in respect of the use of the Property as six self-contained flats. The grounds for the application were said to be that the Property had been converted from a single dwelling-house to six self-contained flats which had been in constant use for over four years (the application stated that use as six self-contained flats dated back to 19 February 2008). Haringey LB refused the application for a certificate of lawfulness, on the basis that the Enforcement Notice was still in force and the current use of the Property in that way contravened its requirements.
LB Haringey commenced the present proceedings by information dated 5 May 2021, alleging breach of section 179(2) TCPA. The particulars given in the information were as follows:
“Between the 8 th day of April 2016 and the 5 th May 2021 at 13 Bounds Green Road, London N22 8HE, you did fail to comply with the requirements of an Enforcement Notice served on you as the owner of the property by the London Borough of Haringey on 28 March 2008, which required you to restore the property to two flats by 15 August 2008 contrary to Section 179(2) Town and Country Planning Act 1990.”
Pathfield, the owner of the Property, was convicted by the Magistrates and appealed unsuccessfully to the Crown Court. This is Pathfield's second appeal.
Legislation
The relevant legislation is contained in Part VII of the TCPA which deals with enforcement against breaches of planning control. Section 172 permits the local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control and that it is expedient to issue the notice.
By section 172A(1), the local authority is permitted to give a person who has been served with an enforcement notice a letter assuring that person that they will not face prosecution for breach of the enforcement notice. By section 172A(2), the local planning authority is permitted to give that person a letter withdrawing the assurance of non-prosecution from a future specified date.
Section 173 relates to the contents and effect of an enforcement notice. By section 173(1) the notice must state the matters which appear to the local planning authority to constitute a breach of planning control. Section 173 further provides that:
“(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are –
a) remedying the breach by making any development comply with the terms (including conditions and...
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