Singh v Secretary of State for Communities and Local Government and Coventry City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3379 (Admin) |
| Docket Number | Case No: CO/4405/2010 & CO/4560/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2010 |
[2010] EWHC 3379 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
BIRMINGHAM DISTRICT REGISTRY
BIRMINGHAM CIVIL JUSTICE CENTRE
Mr Justice Foskett
Case No: CO/4405/2010 & CO/4560/2010
and
Sarah Clover (instructed by John Hughes Law Practice Limited) for the Appellant
Peter Goatley (instructed by Treasury Solicitor) for the First & Second Respondents
Hearing date: 29 th November 2010
Introduction
The matters before me relate to two adjacent properties owned by the Appellant, Mr Kirpal Singh, namely, 111 and 113 Holyhead Road, Coventry. He lives at 109. They arise from a decision of the First Respondent by his Inspector, Mr N P Freeman, BA(Hons), Dip TP, MRTPI, DMS, dated 5 March 2010, following appeals by the Appellant against enforcement notices issued by the Second Respondent, Coventry City Council. The Inspector held an inquiry on 9, 10 and 11 February 2010.
The Appellant seeks permission to appeal against that decision pursuant to section 289 of the Town and Country Planning Act 1990 and, if permission is granted, to appeal against the decision. An appeal under s.289 may only succeed on the grounds of a point of law and the first threshold for the Appellant to cross is to demonstrate an arguable error of law in the Inspector's decision.
He also seeks permission to apply for judicial review in respect of the costs decision made by the Inspector and, if permission is granted, to be granted judicial review of the costs decision.
The matters come before me as a "rolled up" hearing of both matters pursuant to orders made by Wyn Williams J and Beatson J. At the conclusion of the argument on both sides I indicated that I regarded the points raised under the s. 289 appeal as arguable and granted permission. The judicial review application was left over to be dealt with following my decision on the substantive issue.
Background
Each property is a separate planning unit and each is in use as a house in multiple occupation ('HMO'). The procedural background is a little complicated, but in essence there is no dispute that prior to the material events 111 could be used lawfully for 5 units of occupation and 113 for 7 units. The units were in the nature of bedsits. A Lawful Development Certificate for 5 bedsits at 111 was granted on 13 June 2005 and in relation to 113 the Council apparently confirmed the position I have indicated in 1997.
The dispute has arisen out of steps taken by the Appellant to increase the number of units in each property to 10. He did this by utilising the existing rooms, including the second storey attic space, in each property, by the use of rear extensions at each property and the incorporation of a dormer extension at 111 to enable the use of two attic rooms in the second storey of that property.
He sought and obtained planning permission for the rear extensions at each property, the permissions granted being on the basis of permitted drawings. It is not in dispute that the dimensions of the built extensions exceeded the dimensions shown on the permitted drawings. He did not obtain planning permission for the dormer extension for 111 and did not seek planning permission for increasing the number of units in each property.
The planning authority issued 3 enforcement notices requiring him, amongst other things, to remove or reduce the number of bedsits in his properties to 5 units in 111 and 7 units in 111 (saying that otherwise there would have been an "unacceptable intensification" of use of the properties) and to reduce the size of extensions that he had built at the rear of both those properties to the dimensions permitted under existing planning permissions.
The basis for the suggestion that there had been an "unacceptable intensification" of the use of the properties was expressed in similar fashion for each property. It will suffice to quote what was said in the Enforcement Notice relating to 111:
"The creation of 10 flats is an unacceptable intensification of the use of the premises providing additional units which have a cumulative impact on the character and intensifies the demand for on-street parking provision in an already heavily parked area where on road parking is limited, to the detriment of highway safety, the free flow of traffic and the amenities of the occupiers of adjacent dwellings. The development is therefore considered to be contrary to Policies BE9, H1, H2, H6, AM22 and the Supplementary Planning Guidelines 'Spon End and Naul's Mill Area of Local Distinctiveness' prepared in accordance with Policy BE2 of the Coventry Development Plan 2001".
In a nutshell, the Appellant's case in the appeals against the enforcement notices was that he did not need planning permission to create additional bed-sit units in the properties — or alternatively, if he did, planning permission ought to be granted — and in relation to the rear extensions, that they should be permitted in what had, in the period before the proceedings before the Inspector, become their present form with a reduced height (achieved by the removal of 5 brick courses) which he said had been reduced in response to a suggestion from the Planning Officer.
The Appellant appealed against the Enforcement Notices. I will say a little about the grounds of appeal shortly, but they included a ground based on subsection (a) of s. 174(1) in each, thus in effect constituting an application for planning permission in respect of the alleged breaches of planning control. Prior to the service of the Enforcement Notices, he had (without prejudice to the question of whether planning permission was in fact required) sought to regularise the alleged breaches of planning control by applying for planning permission for the additional bedsits and for the rear extensions as built. Those planning applications were refused by the planning authority and the Appellant also appealed against those refusals. The inquiry before the Inspector appears to have been so constituted that all relevant avenues for debate about what had happened at the properties could be determined on their merits.
The formal position was that the Inspector had to deal with 5 substantive matters in respect of which appeals were launched:
(a) 3 enforcement notices –
i) In respect 111, (issued on 2 June 2009) — this was Enforcement Notice 1 and characterized by the Inspector as Appeal A.
ii) In respect of 113, (issued 3 July 2009) — this was Enforcement Notice 2 and it was known as Appeal B.
iii) In respect of 113, (issued on 3 July 2009), this was Enforcement Notice 3 and became known as Appeal C.
(b) 2 applications for planning permission–
i) In respect of 111, a series of applications applied for on 19 March 2009 and refused by the planning authority by notices dated:—
a) 21 May 2009 (Appeals I and J); and
b) 15 June 2009 (Appeals D, E, F, G and H).
ii) In respect of 113, by applications made on:—
a) 19 March 2009 and refused by notice dated 17 June 2009 (Appeal N); and
b) 24 March 2009 and refused by notices dated 15 June 2009 (Appeals K, L and M).
In respect of the enforcement notice appeals:
i) The Appellant was successful in respect of Enforcement Notice 3 (Appeal C) and this enforcement notice was quashed and planning permission granted pursuant to the Ground (a) Appeal. It does not form any part of this appeal.
ii) In respect of Enforcement Notices 1 and 2 (Appeals A and B), the notices were upheld with alterations made by the Inspector. By reason of those alterations each appeal succeeded in part, but was dismissed in part.
The matters that are subject to the appeal to this court arise from the way in which the Inspector dealt with the alteration of those two Enforcement Notices (Numbers 1 and 2). I have used the word "alteration" as a neutral expression for present purposes.
The enforcement notices read as follows:
Enforcement Notice 1:
"The breach of planning control as alleged in the notice is —
'Without planning permission: the erection of a single storey rear extension; the erection of a dormer extension to the roof; and the alteration of the premises from 5 bedsits to form 10 flats'.
The requirements of the notice are:
1) Remove the single storey rear extension and all building materials and rubble arising from compliance with this requirement from the land and reinstate the rear elevations to their original position before the breach of planning control took place;
OR
Alter the single storey rear extension, including reducing the height and projection of that extension, in accordance with details approved under [the original] planning permission reference … and remove all building materials and rubble arising from compliance with this requirement from the land;
AND
2) Remove the rear dormer extension to the roof and all building materials arising from compliance with this requirement from the land and reinstate the original roof slopes, to their position before the breach of planning control took place using materials of similar appearance to those on the remaining roof;
AND
3) Cease the use of the property as 10 flats and return the property to a condition suitable for occupation as 5 bedsits."
Enforcement Notice 2:
"The breach of planning control as alleged in the notice is —
'Without planning permission: The intensification of use from 5 bedsits and 2 flats to 6 flats and 4 bedsits; the erection of a ground floor rear extension; and the erection of a first floor rear extension'.
The requirements of the notice are:
(1a) Remove the single storey rear extension and all building materials and rubble arising from compliance with this requirement from the land and reinstate the...
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