R Christopher Neophytou v Enfield Council
| Jurisdiction | England & Wales |
| Judge | C.M.G. Ockelton |
| Judgment Date | 11 March 2022 |
| Neutral Citation | [2022] EWHC 521 (Admin) |
| Docket Number | Case No: CO/92/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 521 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL
Case No: CO/92/2021
Mr S Whale (directly instructed) for the Claimants
Mr G Atkinson (instructed by Enfield Council) for the Defendant
No representation for the Interested Parties
Hearing date: 19 October 2021
Approved Judgment
The site
Hadley Way, London N21 1AN is a residential road of semi-detached houses built in the 1930s. The ground falls away rapidly on the south side of the road, with the result that the back gardens of the houses on that side are substantially below the level of the ground floor at the front. A number of the properties have raised terraces at the back, extending a terrace at approximately the level of the back door of the house, and supporting a garage: access to the garage is down the side of the house at a gradient more nearly level than would be possible without the terrace. One of the houses that has such a terrace is number 20, which belongs to Narain Singh Chubbah and Damayantee Chubbah, the interested parties, and is occupied by members of their family. Their immediate neighbours, occupying the other half of the semi-detached pair at number 18, are Christopher and Rena Neophytou, the claimants.
The present claim arises out of work undertaken at the rear of number 20. It apparently began because of a fear of subsidence threatening the garage. Before the work began there was a terrace of the type I have described. The garage, at the side away from the claimants, occupied the south-east corner of the terrace, that is to say it was as far into the garden as it could be while remaining on the terrace. The terrace then extended across the width of the house. At the side adjacent to number 18, however, the full width of the terrace extended only a few feet into the garden. The space approximately one metre wide, adjacent to the boundary with number 18, was occupied by a flight of steps, leading from terrace level to the garden. Thus, as perceived from the garden of number 18, there was a space between the boundary and the edge of the terrace.
It is convenient at this point to describe some other features of the terrace as it was before works began. It had a sheer vertical face to the south, fronting the rest of the garden. I shall call this face the ‘front’ of the terrace. The top, or surface, of the terrace, was paved with square concrete paving stones. There were three steps up from the surface to the back door of the house. I shall call the edge between the front and the surface the ‘leading edge’: it is of course defined by the front and the surface. Well inside the southern and western boundaries of the terrace was a balustrade constructed of pierced concrete blocks: it sufficed to prevent an accidental fall either from the front of the terrace or into the well where the steps descended to the garden level. The eastern boundary of the usable part of the terrace was the garage wall, pebbledashed down to the level of the paving of the terrace.
The development
Works to the terrace behind number 20 began in January 2019. The exact extent of them is the subject of the present dispute, but a certain amount is beyond dispute. The garage was demolished and rebuilt. The surface of the terrace was removed to a perceptible depth. A steel mesh reinforcement was installed above what then remained, and a new concrete surface was poured. These works included not only the whole extent of the existing terrace, but also the western edge, where the steps were. An RSJ was fixed above the bottom of the steps bridging the void above them, and the new surface of the terrace extended over that space, meaning that the western edge of the terrace was, for the whole of its depth, now adjacent to the boundary of number 18.
A new flight of steps was constructed starting at the middle of the usable part of the terrace and leading southwards into the garden. It was supported by a new concrete platform at approximately garden level, extending over the whole width of the garden (that is, behind the garage as well as the rest of the terrace). New fencing was also installed on the boundary with number 18.
The Claimants had been viewing this work with concern and made a number of representations to the local planning authority, Enfield Council (‘the Council’), the defendant to this claim. Eventually, no doubt as a result of communication between the Council and the interested parties, the latter made an application on 13 June 2019 for planning permission, partly retrospective because of the work that had already been done. The works described included an ‘extension to the rear patio’. The claimants objected. That application was refused on 8 August, on grounds including an increased perception of overlooking and loss of privacy to number 18. Despite the refusal, no enforcement action was taken at this stage. On 18 October there was a further application for planning permission, again partly retrospective. The changes from the first application were, in essence, a 75 cm reduction in the height of the new fence, and a one-metre narrowing of the width of the terrace adjacent to the boundary with number 18. The claimants objected. This application was also refused, on similar grounds. Again, no enforcement action was taken.
So far as the works were concerned, time passed with little further in the way of relevant events. The defendant gave the interested parties time to remedy matters, which time was extended on a number of occasions. On 7 August 2020 the defendant informed the claimants that an enforcement notice would be served if the interested parties has not substantially completed remedial works by 1 September. That date came and went without the remedial works being substantially completed, and without there being any enforcement notice. At this time is appears that work was done to the garden itself. Following what they regarded as an unsatisfactory exchange with the Council on 22 September, the claimants commissioned a report from a planning consultant, Litmus. Meanwhile, there was a meeting on site on 2 November. Officials of the Council attended, and discussed a considerable number of issues in relation to the development in the light of detailed submissions made by the claimants and supplemented by a PowerPoint presentation. The Council's summary of that meeting and its conclusion is contained in a spreadsheet (“the spreadsheet”). The report by Litmus is dated 5 November and was sent to the Council shortly afterwards.
By the time of the meeting it appears that the work was to all intents and purposes completed and in its present form. The steps on the front of the terrace into the garden have been removed. Access to the garden is again by a flight of steps on the western side of the terrace; the terrace itself no longer extends to the boundary with number 18 except at the part closest to the house. The terrace has been repaved. The three steps from the terrace to the back door have been renovated. A new metal fence has been erected along the sides of the terrace where the concrete balustrade had been; the fence is, however, close to the edge of the terrace, unlike its predecessor. The front of the terrace is sheer, except for a slight batter at the top of the wall immediately below the end of the garage. It is clear that there has been work to the garden, newly laid as a lawn surrounded by paving at various levels.
The decision, and this claim
On 27 November Vincent Lacovara, one of the Council officials who had taken part in the visit on 2 November, wrote to the claimants. His email attaches the spreadsheet. It notes that the visit and the claimants' submissions were helpful, but rejects significant parts of the Litmus report. It informs the claimants of the Council's view that “those elements of the development that did cause us concern were rectified by the works that were undertaken over the summer”. The operative part of the email is the previous sentence: “Overall I can confirm that we have concluded that we do not intend to undertake any further enforcement action for development that has occurred to date at 20 Hadley Way”.
That decision, to take no enforcement action, is the subject of the present challenge. The claim seeking judicial review of it was filed on 8 January 2021. There has been no response from the interested parties. Permission was granted by Mr Timothy Mould QC sitting as a Deputy Judge of this Court.
Clearing the ground
In the course of the process of seeking to challenge the building work taking place on their neighbours' land, the claimants have had long dealings with the Council. Those dealings have not been happy; the claimants have made a number of complaints and one at least has been upheld. I am not concerned with them. I am concerned only with whether the claimants can show that the decision under challenge was unlawful. Perhaps as part of the resultant unease that they felt about the Council's dealings with them, the claimants have taken a number of points about the identity of the Council witness whose witness statements constitute much of the Council's evidence before me. I see what the claimants mean, but there is nothing in the point. The statements are concerned with narrating the planning history and producing exhibits: they could have been made by any properly authorised officer of the Council. They are clearly not inadmissible; and they suffer in no relevant way by being made by an officer different from those previously involved.
The claimant's' objections...
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