R Seventeen De Vere Gardens (management) Ltd v The Royal Borough of Kensington and Chelsea
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 08 November 2016 |
| Neutral Citation | [2016] EWHC 2869 (Admin) |
| Docket Number | Case No: CO/1377/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 November 2016 |
[2016] EWHC 2869 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hickinbottom
Case No: CO/1377/2016
Christopher Jacobs (instructed under the Direct Access Provisions) for the Claimant
Mark Westmoreland Smith (instructed by Tri-Borough Legal Services) for the Defendant
Hearing date: 8 November 2016
Approved Judgment
Introduction
In these proceedings, the Claimant challenges the decision of the Defendant local planning authority ("the Council") dated 8 March 2016 to decline its application for retrospective planning permission for pigeon-deterrent netting to the rear areas of 17 and 21 De Vere Gardens, London W8.
That decision was taken under section 70C of the Town and Country Planning Act 1990 ("the 1990 Act"), inserted by section 123(2) of the Localism Act 2011, which, under the heading, "Power to decline to determine retrospective application", provides:
"(1) A local planning authority may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.
(2) For the purposes of the operation of this section in relation to any particular application for planning permission, a "pre-existing enforcement notice" is an enforcement notice issued before the application was received by the local planning authority."
Before me, Christopher Jacobs has appeared for the Claimant, and Mark Westmoreland Smith for the Council. At the outset, I thank them for their contribution.
The Factual Background
The Claimant owns the freehold title to 15 and 17 De Vere Gardens, which are broken into flats, held on long leasehold or statutory tenancies. The properties are next to one another, on the east side of the street. No 21 is on the other side No 17 from No 15.
In 2010, as part of a re-development project, work began on the demolition of two hotels on the west side of the street, opposite the properties. Pigeons, which had nested in the hotels for many years, were driven out and began roosting in the eaves and roofs of the properties, and particularly in the gap between No 17 and No 21. This resulted in substantial pigeon droppings falling on the windows, window sills, pipes, cables, wires, patios and ledges of the properties.
In December 2013, with the agreement of the owners and occupiers of No 21, netting was erected across the rear of Nos 17 to 21. The Claimant says that the netting has been successful in controlling the pigeon infestation, and there is no evidence to the contrary.
The erection of the netting enclosure required planning permission, and none was sought. On 3 April 2014, the Council received a report that the unauthorised netting was in place, and an enforcement officer began an investigation.
On 3 July 2014, C A Daw & Son Limited ("the Agents"), as agents for the Claimant, submitted a planning application to the Council, with the appropriate fee ("the First Application"). The following day, the Council sent a letter to the Agents, saying that the application was "insufficient" to be validated; and further information was requested, i.e. scale drawings. By virtue of article 7(1)(c) and 7(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No 595), any application for planning permission must include a scale plan and drawings sufficient to identify the property or properties involved. By article 34(4), a "valid application" is one which satisfies all the relevant statutory requirements, including necessary plans and drawings. By article 34(2)(b), once a valid application has been received, the planning authority has eight weeks to determine it. There is no obligation to determine an application that, in contravention of the statutory requirements, is incomplete, and thus not valid.
Those drawings would have been quite expensive to produce. In the event, having been specifically requested, they were not provided. Instead, in due course, the Agents were instructed by the Claimant to ask the Council to put the application on hold, as they were considering other options to overcome the pigeon problem; and the Agents did indeed pass on those instructions to the Council by telephone, confirming them by email on 6 August 2014. There was then a lull.
On 22 October 2014, the Council emailed the Agents, as follows:
"…given the length of time and as the enclosure still remains in place with no completed application and as the requirements have not been forthcoming, the Council has no option, but to consider taking formal enforcement action. Unless the enclosure is removed or the planning application completed within 14 days of the date of this email, then formal enforcement action will proceed without further notice to yourself."
On 11 December 2014, following complaints from neighbours and the assessment of the unauthorised use by the Council's enforcement team, the Council issued an enforcement notice, which stated that the notice was to take effect on "12 January 2014".
By virtue of section 174 of the 1990 Act, where an enforcement notice is served, there is a right of appeal to the Secretary of State who generally delegates the decision-making on such appeals to a member of the Planning Inspectorate. That is the only means to challenge such a notice (section 285(1) of the 1990 Act). An appeal has to be lodged by the date specified in the notice as the date the notice takes effect, and failure to appeal by that date is fatal to the ability to appeal.
On 7 January 2015, the Claimant lodged an appeal against the notice issued on 11 December 2014; and the Secretary of State appointed Mrs Hilda Higenbottam BA (Hons) MRTPI ("the Inspector") to determine the appeal.
Certainly, by that stage, the planning application had lapsed. In Geall v Secretary of State for the Environment, Transport and the Regions [1999] 78 P&CR 264, another case in which the planning applicant failed to provide required plans and drawings after a specific request and the authority commenced enforcement proceedings, it was held that the applicant could not rely upon the planning application to defeat those proceedings; because it had, in effect, lapsed and was incapable of being revived.
Of the statutory grounds of appeal set out in section 174(2), in the appeal in this case, the Claimant relied upon three, namely ground (a) that planning permission ought to be granted, ground (e) that the enforcement notice was not properly served as required by section 172, and ground (g) that the period specified in the notice for compliance fell short of what should reasonably be allowed. Furthermore, in what was really a sub-ground of (e), the Claimant maintained that the notice was a nullity, because the stated date on which it took effect was before the date on which the notice was issued.
In respect of ground (e), in due course, the Inspector found that the notice had been properly served; and she also declined to treat the enforcement notice as a nullity, holding that the reference to "2014" in the date on which the notice was to take affect amounted to an obvious and immaterial typographical error. I need not refer further to those grounds. This claim concerns grounds (a) and (g).
In respect of ground (a), the Claimant wished to argue that planning permission ought to be granted on its merits. However, ground (a) attracted a fee, because, by section 177(5) of the 1990 Act, where an appeal is made against an enforcement notice, the appellant is deemed to have made an application for planning permission "in respect of the matters stated in the enforcement notice as constituting a breach of planning control"; and, under regulation 10 of the Town and Country Planning (Fees for Applications), Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (SI 2012 No 2920), a fee is payable on a deemed planning application. Furthermore, section 177(5A) of the 1990 Act provides that, where notice is given specifying the time in which the fee must be paid, then, if the fee is not paid within that time, the appeal so far as brought on that ground shall lapse at the end of the period.
In this case, unfortunately, no fee was paid when the appeal was lodged, because the Agents had not appreciated that a fee was payable. Furthermore, although the Inspectorate emailed the Agents saying that a fee was due and was payable by 17 March 2016, the fee was not paid by that date either. That was a result of the person dealing with the application at the Agents going on holiday for a fortnight as soon as the application (fee-less) was lodged, without leaving anyone in charge of this matter. The appeal on ground (a) therefore lapsed in mid-March, and was thus doomed on this basis alone.
As a result of the apparent difficulties with ground (a), the Claimant submitted that the Inspector should extend the period for compliance with the enforcement notice under ground (g), "to enable the outstanding application [i.e. the First Application] to be considered" (see, e.g., paragraph 4(b) of the submissions of 12 May 2015). As the written submissions evolved, the Claimant accepted that the First Application had lapsed, as a result of the failure to lodge the scale drawings on time; but it maintained the substance of...
To continue reading
Request your trial
-
Chesterton Commercial (Bucks) Ltd v Wokingham District Council
...determined were suggested by Hickinbottom J in R (Seventeen de Vere Gardens Management Ltd) v London Borough of Kensington v Chelsea [2016] EWHC 2869 (Admin), at paragraph 44: “where the development plan has changed, or some other material planning considerations have changed, so that the u......
-
R Finnegan v Southampton City Council
...‘held over’.” 20 In R (On the Application of) Seventeen De Vere Gardens (Management) Ltd v The Royal Borough of Kensington And Chelsea [2016] EWHC 2869, Hickinbottom J observed: “32. Thus, in respect of section 70C, as Lewis J recently emphasised in R (O'Brien) v South Cambridgeshire Distri......
-
The Queen (on the application of Mr Deep Banghard) v Bedford Borough Council
...would be "held over"." 16 Section 70C was also considered by Hickinbottom J (as he then was) in R (Seventeen de Vere Gardens Management Limited) v London Borough of Kensington and Chelsea [2016] EWHC 2869. The facts of the case are largely irrelevant and the fact that the decision was quash......