Rajesh Bansal v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 15 June 2021 |
| Neutral Citation | [2021] EWHC 1604 (Admin) |
| Date | 15 June 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4067/2020 |
[2021] EWHC 1604 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/4067/2020
Katherine Barnes (instructed by Attwells Solicitors LLP) for the Appellant
Emma Dring (instructed by the Government Legal Department) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 18 May 2021
Approved Judgment
The Appellant appeals under section 289(1) of the Town and Country Planning Act 1990 (“TCPA 1990”) against the decision, dated 9 October 2020, of an Inspector, appointed by the First Respondent, to dismiss the Appellant's appeal against an enforcement notice issued by the Second Respondent (“the Council”) in respect of the unauthorised conversion of 203, Great West Road, Hounslow TW5 0DQ (“the Property”) into two flats.
At a hearing on 8 December 2020, Rhodri Price Lewis QC, sitting as a Deputy High Court Judge, granted the Appellant permission to appeal.
Grounds of appeal
In summary, the Appellant's grounds of appeal were as follows:
Ground 1
i) The Inspector's finding that the Appellant had failed to establish the use of the ground floor as a self-contained flat for the requisite period was irrational, given his findings in relation to the use of the first floor for the same period, and in the light of section 55(3)(a) TCPA 1990, which provides that the use as two or more separate dwelling houses of any building previously used as a single dwelling house involves a material change in the use of the building, and of each part of it which is used.
ii) Further or alternatively, the Inspector erred in his consideration of whether the ground floor had been in use as a self-contained flat for the requisite period because he failed to have regard to a material consideration, namely his prior finding that the first floor flat had been in use as a self-contained flat.
Ground 2
iii) In assessing whether a change of use from a single dwelling house to two separate dwelling houses was ongoing for the purposes of section 171B(2) TCPA 1990, the Inspector failed to take account of a material consideration in the form of the physical works which had taken place to create the two separate flats. The Inspector unlawfully limited his assessment to whether both flats had been occupied, instead of considering the broader concept of use which is informed by physical works.
Planning history
The Property is a two storey semi-detached residential dwelling house, which is owned by the Appellant.
The Appellant stated in his ‘Statement of Facts & Grounds’ on appeal to the Inspector that he purchased the Property in 2012, and at that time, it had already been divided into two flats.
The enforcement history was set out by the Council in its Case Statement as follows. On 10 May 2018, the Council received a complaint that the Property had been divided into flats. In June and July 2018, the enforcement officer undertook visits to the Property, but did not gain access. On 10 August 2018, the enforcement officer visited the Property again. He did not gain access but he spoke to tenants who confirmed that the Property was divided into two flats.
On 27 February 2019, the housing enforcement team gained access to the Property and confirmed that it had been subdivided into two self-contained flats.
On 16 May 2019, the enforcement officer sent a Planning Contravention Notice (PCN) to the Appellant. The Appellant responded on 2 June 2019. In answer to the question as to how long the Property had been used for its current purpose, the Appellant replied “since at least April 2014”. He gave the names of the tenants living in the Property, stating that the ground floor tenants had lived there since April 2015 and the first floor tenants had lived there since April 2014. He submitted a tenancy agreement for the first floor flat.
On 21 March 2019, the enforcement officer wrote to the Appellant advising him that the conversion of the Property into two self-contained flats was in breach of planning control.
On 14 February 2020, an Enforcement Notice was issued, alleging a breach of planning control by the unauthorised conversion of the Property into two self-contained flats, without planning permission, in the last 4 years. It set out the reasons why it considered it expedient to issue the notice, namely, breaches of various Local Plan policies. It required the Appellant, within 3 months, to cease the use of the Property as two self-contained flats; to remove all but one of the kitchens and bathrooms; and to remove the sub dividing doors.
The Appellant appealed to the Secretary of State under section 174(2)(d) TCPA 1990 on the ground that, at the date the enforcement notice was issued, enforcement action could no longer be taken, by virtue of section 171B(2) TCPA 1990, as four years had expired from the date of the breach.
In his ‘Statement of Facts & Grounds’, at paragraph 3, the Appellant submitted a number of documents and photos “to demonstrate that the property was in use as two dwellings since at least January 2015 to the present day, over 5 years” i.e. photographs, tenancy agreements, tenancy deposit certificates, poll card, electoral register household enquiry. The documents showed that there had been a change of tenant in the first floor flat in October 2018.
The Inspector's decision
The Inspector conducted the appeal by way of written representations.
In his Decision Letter (“DL”), at DL3, he found that the Property had been sub-divided horizontally to form two self-contained flats. He made no findings as to the date on which the conversion had taken place.
The Inspector summarised the law and the issue for determination at DL4:
“The appellant's case sets out the statutory framework and case law to be applied in this appeal. In respect of the latter, the decisions in Thurrock BC v SSETR & Holding (CA) [2002] and Swale BC v FSS & Less [2005] EWCA Civ 1568, [2006] are cited. From these, in essence, it is for the appellant to show that the material change of use of 203 Great West Road to two self-contained flats (‘the use’) took place at least 4 years before the issue of the enforcement notice, that the use was continuous for 4 years thereafter and that the use was not subsequently lost. Given that the notice was issued on the 14 February 2020, it has to be shown that the use commenced by the 14 February 2016.”
In respect of the first floor flat, the Inspector found, at DL5, that the Assured Shorthold Tenancy Agreements and the Tenancy Deposit Certificates, and the Appellant's bank statements, showed on the balance of probabilities that the flat had “been occupied continuously for more than four years”. There was evidence that it had been occupied by tenants from 3 April 2015 to 3 April 2018, and then different tenants from 5 October 2018 to 5 August 2019. There had been two sets of tenants.
In respect of the ground floor flat, the Inspector was not satisfied that it had been occupied for a continuous period of four years prior to the notice being issued (DL11). He accepted that the Assured Shorthold Tenancy Agreement dated 5 April 2015, with an associated Tenancy Deposit Certificate, showed that the flat was occupied by Ashley Collado and Brahami Mouloud (DL6). However, the other documentary evidence – a Polling Card dated 23 May 2019 and a Household Enquiry letter from the Council's Electoral services department, dated 25 July 2019 – did not show that Ashley Collado still resided there at the dates on the documents (DL7).
At DL9 the Inspector found that the photographs of the flats which had been submitted carried little weight as there was no evidence as to when they were taken, and they did not show evidence of occupation.
The Inspector concluded, at DL11, that “the evidence before me does not show that when the notice was issued, no enforcement action could be taken in respect of the breach of planning control – namely, the use of 203 Great West Road as two self-contained flats”.
Legal framework
Appeal under section 289 TCPA 1990
An appeal under section 289 TCPA 1990 against the decision of the Secretary of State on an appeal against an enforcement notice may only be made on a point of law. It is not an appeal on the merits.
In Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, Lord Carnwath giving the judgment of the Supreme Court warned, at [23], against over-legalisation of the planning process. At [24] to [26], he gave guidance that the courts should recognise the expertise of the specialist planning inspectors and work from the presumption that they will have understood the policy and legal framework correctly. Inspectors are akin to expert tribunals who have been accorded primary responsibility for resolving planning disputes and the courts have cautioned against undue intervention by the courts.
A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
TCPA 1990
Section 55 TCPA 1990 sets out...
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