R Lambrou v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | David Elvin |
| Judgment Date | 04 October 2013 |
| Neutral Citation | [2013] EWHC 325 (Admin) |
| Docket Number | CO/4693/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 October 2013 |
[2013] EWHC 325 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
David Elvin Qc
(sitting as a Deputy High Court Judge)
CO/4693/2012
Mr J Lopez (instructed by Direct Access) appeared on behalf of the Claimant
Mr H Phillpot (instructed by Treasury Solicitors) appeared on behalf of the Defendant
The Deputy Judge ( David Elvin Qc):
Introduction
In this appeal under s.289 of the Town and Country Planning Act 1990 ("TCPA 1990") the Appellant Sophie Lambrou seeks to challenge, with the permission of Her Honour Judge Robinson granted on 14 January 2013, the decision of the First Respondent's Inspector, given by a letter dated 13 December 2011 ("the DL") to dismiss the Appellant's appeal under s.174 TCPA 1990 and to uphold with amendments the enforcement notice issued by the London Borough of Haringey ("the Council") on 11 April 2001 ("the 2011 Notice"). The permission given by the Court was limited to the first ground only and did not permit the reasons challenged alleged in Ground 2 to be made.
The 2011 Notice concerns a property at 66 Wightman Road, London N4 ("the Property") and was accompanied by a letter which notified the Appellant that "the current enforcement notice has been withdrawn and reissued". In its operative parts the 2011 Notice provided:
"1. THIS IS A FORMAL NOTICE which is issued by the Council because it appears to them that there has been a breach of planning control, under Section 171A(1)(a) of the above Act, at the land described below. They consider that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations.
2. THE LAND AFFECTED
The land and building(s) known as 66 Wightman Road London N4 1RW shown edged red on the attached plan ("the premises").
3. THE BREACH OF PLANNING CONTROL ALLEGED
Without planning permission the unauthorised conversion of the premises from a single dwelling house to 9 self-contained flats.
4. REASONS FOR ISSUING THIS NOTICE
1. It appears to the Council that the above breach of planning control has occurred within the last four years and that steps should be taken to remedy the breach by Section 173(4)(a) or to remedy an amenity or injury which has been caused by the breach.
2. The development is considered over-intensive and has resulted in the provision of units of accommodation of an unacceptable standard contrary to Policy HSG 1 'New Housing Development the Haringey Unitary Development Plan (Adopted July 2006) and the LB Haringey Housing Supplementary Planning Document (SPD) adopted October 2008.
3. The property is within the Haringey Ladder 'Restricted Conversion Area', an area that is the subject of an excessive number of conversions, leading to a loss of family housing and on-street parking pressure. Therefore, the conversion of the property is contrary to Policy HSG 11 'Restricted Conversion Areas' of the Haringey Unitary Development Plan (Adopted July 2006).
REQUIRED TO DO
1. To cease using the property as self-contained flats.
2. Restore the property back to a single dwelling.
3. Remove from the property all fixtures and fittings in relation to the unauthorised use.
5. WHAT YOU ARE REQUIRED TO DO
1. Cease using the property as self-contained flats.
2. Restore the property back to a single dwelling.
3. Remove from the property all facilities in relation to the unauthorised development.
Time compliance: 6 month(s) after this notice takes effect.
6. WHEN THIS NOTICE TAKES EFFECT
This notice takes effect on 20 May 2011 unless an appeal is made against it beforehand."
The 2011 Notice was issued by the Council in reliance upon what are referred to as the "second bite" provisions which permit in defined circumstances the extension of time for the service of an enforcement notice beyond the time limits stipulated in s.171B TCPA 1990 and are an exception to those time limits. I will return to the statutory provisions but the issue which arises here under s. 171B(4) is whether the planning authority had "purported to take enforcement action" at some time within the recent past, thus extending the period of enforcement by four years from the date of that purported action.
The facts here are essentially simple in that the allegation against the Appellant was, and had for a number of years been, that she had converted the Property from a single dwelling house into ten flats. This was alleged in a series of enforcement notices — one in 2006 and three in 2008 — though by the time of the enforcement notice which is the subject of this appeal, there were only nine flats and a former flat which was in use for storage. There had been a somewhat messy series of attempts by the Council to enforce against this breach of planning control which had led to it issuing a fifth notice in 2011, the subject of this appeal.
The enforcement notice issued on 6 September 2006 referred to the Property, alleged a breach in similar terms to that in the 2011 Notice and required similar steps to be taken as follows:
"3. THE BREACH OF PLANNING CONTROL ALLEGED
Without planning permission, the unauthorised residential conversion of the property into 10 self-contained Units within a Restricted Conversion Area.
…
5. WHAT YOU ARE REQUIRED TO DO
i) Cease using the property as 10 self-contained units.
ii) Remove from the property all facilities in relation to the development.
iii)Restore the property back to its original state.
Time for compliance: 4 months after this notice takes effect."
Of the three notices issued in 2008, the first was issued on 10 June 2008, the second on 21 October 2008 and the third on 11 December 2008. I have not seen the June notice, since only the covering letter from the Council's enforcement notice is before the Court but it is clear it refers to the Property. Both the June and October notices appear to have been withdrawn before the next notice in sequence was issued. The October and December 2008 notice are in materially identical terms, save for the date when they were said to take effect, which was, respectively, 1 December 2008 and 15 January 2009. Both enforcement notices stated in terms that they were enforcement notices "issued by Haringey London Borough Council" and provided:
"1. THIS IS A FORMAL NOTICE which is issued by the Council because it appears to them that there has been a breach of planning control, under Section 171A(1)(a) of the above Act, at the land described below. They consider that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations.
2. THE LAND AFFECTED
The dwelling/premises and associated land at 66 Wightman Road London N4 1RW shown edged red on the attached plan ("the premises").
3. THE BREACH OF PLANNING CONTROL ALLEGED
Without planning permission, the unauthorised conversion of the premises from a single dwelling house to ten self-contained flats.
4. REASONS FOR ISSUING THIS NOTICE
1. It appears to the Council that the above breach of planning control has occurred within the last four years.
2. The development is considered over-intensive and has resulted in the provision of units of accommodation of an unacceptable standard contrary to Policy HSG 1 'New Housing Developments' and Supplementary Planning Guidance, SPG3a 'Density, Dwelling Mix, Floorspace Minima, Conversions, Extensions and Lifetime Homes' of the Haringey Unitary Development Plan (Adopted July 2006).
3. The property is within the Haringey Ladder 'Restricted Conversion Area', an area that is the subject of an excessive number of conversions and parking pressure. Therefore, the conversion of the property is contrary to Policy HSG 11 'Restricted Conversion Areas' of the Haringey Unitary Development Plan (Adopted July 2006).
5. WHAT YOU ARE REQUIRED TO DO
1. Cease using the property as self-contained flats.
2. Remove from the property all facilities in relation to the unauthorised development.
3. Restore the property back to a single dwelling.
Time compliance: 3 months after this notice takes effect."
The issue of the 2008 notices were all said, although disputed by the Appellant, to derive their authority from the exercise of delegated power by Paul Smith, the Council Head of Development Control (South) on 9 May 2008 which was contained in a written note or minute which was also referred to as document 17 in the document list at the end of the decision letter. There is no suggestion that the officer lacked the delegated authority to authorise the taking of enforcement action against the Property. The minute attached a Report/Result of Enforcement Investigation by the Planning Enforcement Officer to Paul Smith, which advised of the steps taken to investigate the alleged breach of planning control and gave the details of the Property and then described the breach in these terms:
" Details of development
Unauthorised residential conversion from a single family dwelling into ten (10)".
Following details of the investigation and evidence for enforcement action the Report made a recommendation:
"RECOMMENDATION
To serve an Enforcement Notice to bring about the removal of development.
REASON
1. The property lies within the restricted Conversion Area of the Haringey Ladder, an area where no more conversions will be allowed as the area has reached its capacity for conversions contrary to policy HSG 11 'Restricted Conversion Areas' of the Haringey Unitary...
To continue reading
Request your trial