Peter Jeremy Bowring and Aida Milena Bowring v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Clive Lewis |
| Judgment Date | 03 May 2013 |
| Neutral Citation | [2013] EWHC 1115 (Admin) |
| Docket Number | Case No: CO/975/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 May 2013 |
[2013] EWHC 1115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clive Lewis QC
(Sitting as a Deputy High Court Judge)
Case No: CO/975/2012
Isabella Tafur for the Appellants
Charles Banner (instructed by Treasury Solicitor) for the First Respondent
Hearing date: 25 th April 2013
Approved Judgment
Clive Lewis QC:
INTRODUCTION
This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision dated 22 December 2011 of an inspector appointed by the Secretary of State for Communities and Local Government. The inspector heard an appeal against an enforcement notice. That notice was issued by the London Borough of Waltham Forest on 25 May 2011 in respect of property at 61 Lincoln Street, Leytonstone, East London E11 4PZ. The enforcement notice alleged that there had been a material change of use, that is a change of use from use as a single dwelling house to use as three self-contained flats. The notice required the cessation of use as three self-contained flats, the restoration of the property to its authorised use a single dwelling and the removal of all structures, fixtures and fittings associated with the use of the property as three self-contained flats, including any kitchen fittings. The enforcement notice was varied by the inspector to require the removal of only one of the three kitchens at the property. It is this last requirement, the removal of a kitchen, that is the subject of this appeal.
The Appellants contend that that decision is unlawful for three reasons. First, they say that the property already contained three kitchens prior to the unauthorised change of use, the kitchens were not therefore part and parcel of the material change of use and the removal of a kitchen was not necessary to remedy the breach of planning control represented by the material change of use. Secondly, they say that all that was necessary to ensure that the property was not used as three self-contained flats was to remove the locks on the entry doors to the flats and it was not necessary to go further and require removal of one of the kitchens. Thirdly, the Appellants say that the requirement that they remove the kitchen is an unlawful interference with their possessions contrary to Article 1 of the First Protocol to the European Convention on Human Rights and so is unlawful by reason of section 6 of the Human Rights Act 1998.
THE FACTS
The Appellants purchased the property in 1998. At that time it was in a substantial state of disrepair. The Appellants have carried out various works at the property. It is accepted that the appellants had previously intended to use the property as a house in multiple occupation: the change of use from use as a single dwelling to a house in multiple occupation would be permitted development by virtue of Article 3 of, and Schedule 2 to, the Town and Country Planning (General Permitted Development) Order 1995. It seems that the Appellants had installed additional kitchens in the property and those kitchens had, in fact been installed prior to the change of use to use as self-contained flats. The evidence on this aspect of the matter is, however, not clear. In particular, it is not clear on which date the two additional kitchens were installed and whether they were installed simply to enable the house to be used a house in multiple occupation or whether the installation of the two additional kitchens was in fact a precursor to the conversion of the house into three self-contained flats. It is also not clear whether the property was actually occupied as a house in multiple occupation and, if so, for what length of time. The hearing statement that was before the inspector at the inquiry simply noted that:
"The Appellant previously developed the property as a [house in multiple occupation] by adding a number of facilities to the Property for the benefit of the tenants such as additional kitchens and bathrooms (see original plan attached as Schedule 4). The additional kitchen and bathroom on the first floor were added as part of the development of the Property with a view to its use as a [house in multiple occupation] by more than five (5) persons in reliance on the East London HMO Guidelines subscribed to by the LPA and attached as Schedule 2 which clearly state that the minimum is that one kitchen be provided per five occupants."
At some stage, the Appellants converted the property to three self-contained flats. On 25 May 2011, the local planning authority served an enforcement notice alleging that there had been a breach of planning control in that there had been a change of use from use as a single dwelling to use as three self-contained flats without planning permission. The enforcement notice required the Appellants to do the following:
"(1) Cease the use of the property as three self-contained flats and cease the use of each flat as a separate dwelling
"(2) Restore the property to its authorised use as a single dwelling
"(3) Remove all structures fixtures and fittings associated with the use of the property as three self-contained flats including any kitchen fittings, gas meters and electricity meters except as required for use of the Land as a single dwelling house
"(4) Remove all debris resulting from any works under this notice."
The Appellants appealed on a number of grounds. For the purposes of this appeal, the relevant ground is that in section 174(f) of the 1990 Act namely that the steps required by the notice exceed what is necessary to remedy any breach of planning control.
The inspector's decision on this ground of appeal is set out in paragraphs 23 to 25 of his decision. He said this:
"23. I do not consider that requirements (1) and (2) are excessive. I have found that the change of use is unacceptable and that planning permission ought not to be granted. I consider that, in relation to a Class 3 Use, this could mean that the property could revert to a single house in multiple occupation but it would still be classed as a single dwelling house rather than 3 self-contained flats if kept within the HMO restrictions on numbers of occupants.
24. With regard to requirement (3) I accept that, as worded, it is excessive. For example there is only gas meter and one main electricity meter in the property. However, the aim of the requirement is to remove elements that enable the property to be used as three separate units. A requirement such as this is therefore in principle appropriate and necessary. I intend to use my powers to vary the wording of this requirement so that it achieves this aim and accords with the other requirements without being excessive.
25. I accept the appellants' contention that it is not unusual for single dwellings, or for dwellings which are shared by a number of persons, to have more than one area for food and drink preparation. I consider it reasonable and appropriate, therefore to vary the notice by requiring removal of only the first floor kitchen. This would give the opportunity for people living in the house to use the large kitchen on the ground floor and/or the smaller one, at the top of the house, on the second floor. This would also satisfy the requirement in the East London Guidance on HMO Standards, that kitchen facilities should be no more than one floor away from other accommodation. At the same time this arrangement would, in my view, also be in line with the aims of the other requirements in restoring the property to a Class 3 Use. I do not consider that this will cause any injustice."
At paragraph 32 of his decision, the inspector said this:
"32. On balance, I conclude that the upholding of the notice will not have a disproportionate effect on the interests of the appellants or any other affected person. I consider that any interference in Human Rights in this case is proportionate and that the objective of restoring the property to a single dwelling house in Class C3 cannot be achieved by any other means (other than upholding the varied notice) which would cause less interference to the appellants and the tenants."
The inspector therefore directed that the enforcement notice to be varied by deleting requirement 3 and substituting instead a requirement that the locks to the entrance doors of the 3 self-contained flats be removed and that the kitchen fittings and equipment be removed from the first floor.
THE LEGAL FRAMEWORK
Section 57 of the 1990 Act provides that "planning permission is required for the carrying out of any development of land". Development is defined in section 55 of the 1990 Act as meaning, except where the context otherwise requires:
"the carrying out of building, engineering, mining or other operations in, on, or over land or the making of any material change in the use of buildings or other land".
A local planning authority has powers to issue an enforcement notice. The contents and effect of an enforcement notice are prescribed by section 173 of the 1990 Act which provides, so far as material, that:
"(1) An enforcement notice shall state—
(a) the matters which appear to the local planning authority to constitute the breach of planning control; and
(b) the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.
(2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to...
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