The King (on the Application of Devonhurst Investments Ltd) v Luton Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] EWHC 978 (Admin) |
| Year | 2023 |
| Docket Number | Case No: CO/1137/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 978 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/1137/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Scott Stemp (instructed by Town Legal LLP) for the Claimant
Wayne Beglan (instructed by Luton Borough Council Legal Services) for the Defendant
Hearing dates: 15 & 16 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
By this claim for judicial review, Devonhurst Investments Ltd seeks to challenge a decision made by Luton Borough Council on 17 February 2022, to issue an enforcement notice (ref: 21/00045/UBC; ‘the Notice’) pursuant to the Town and Country Planning Act 1990, relating to land at Shire House, 400 Dallow Road in Luton, Bedfordshire (‘the Site’).
The breach of planning control identified in the Notice was:
“Without planning permission:-
(1) the change of use of the Land from an employment use to a residential use comprising of approximately 109 self-contained residential units.
(2) the erection of three two storey structures used to accommodate multiple self-contained residential units on the Land, in the approximate position shown cross-hatched black on the attached plan reference 001”.
Section 5 of the Notice set out the remedial action required. By section 6 a time period of 6 months from 8 April 2022 was given for compliance with the requirements of the Notice. However, the claimant has appealed against the Notice pursuant to section 174 of the Town and Country Planning Act 1990 (‘TCPA’) and, in the meantime, is not required to take the action required by section 5 of the Notice.
Permission to bring this challenge was granted by HHJ Jarman KC, sitting as a judge of the High Court, on 6 October 2022, in respect of two of the three grounds raised by the Claimant, namely:
i) Ground 2: Whether the Decision was taken without any, or any proper, regard to:
a) The defendant's Public Sector Equality Duty (‘PSED’) arising under s.149 of the Equality Act 2010 (‘the EA 2010’);
b) The best interests of children (“BIOC”) residing on the Site; and/or
c) The article 8 ECHR rights of occupants.
ii) Ground 3: Whether the Decision was taken without any, or any proper regard, to the statutory test of expediency (s.172(1)(b) TCPA).
B. The facts
The Site was formerly the site of an office block, and it is located within a functioning industrial estate which lies within a Key Category A Area designated within the extant development plan (the Luton Local Plan 2011–2031, adopted in 2017). The buildings presently on the Site are in part two-storey and in part three-storey. The office building now named Shire House was formerly known as Chubb House but I shall refer to it throughout by its current name.
On 15 April 2016, an application (reference 16/00677/COM) was made to the Council for “ Prior Approval — change of use from office(s) (B1a) to (C3) residential. (Class O) 130 dwellings”. The request for prior approval was made pursuant to the provisions of Schedule 2 Part 3 Class O and paragraph W of the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) (‘the GDPO’).
On 15 June 2016, the Council made a formal decision that prior approval was not required (‘the Prior Approval’). The Prior Approval stated:
“The prior approval of the local planning authority is not required for the works specified above and accompanying information:-
1. The design and building specifications of the proposed development shall be such that noise from “commercial premises” as defined by the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) shall be suitably mitigated to ensure where relevant that the daytime noise level within any residential unit shall not exceed 40dBLAeq (0700–2300), the night time noise level within any residential unit shall not exceed 30dBLAeq (2300-0700) and the night time LAmax shall not exceed 45dB. Full details of any required noise insulation measures shall be submitted to and approved by the Local Planning Authority before any work is commenced. The approved insulation scheme shall be completed prior to the occupation of the development …
Reason: To protect the amenities of the future occupiers of the residential accommodation hereby approved. To accord with the objectives of Policy LP1, H2 and ENV9 of the Luton Local Plan and the guidance of the NPPF
Notes:
Development under Class O is permitted subject to the condition that it must be completed within a period of 3 years starting with the prior approval date as set out on this decision notice.
The development shall be carried out in accordance with the details provided in the application, and does not imply any consent is granted for any external works outside of the building, including infilling the undercroft parking area, for which a separate consent may be required.” (Underlining added.)
In around 2016 to 2017, the claimant began works to convert Shire House from offices to flats. The Council's building control records indicate that Shire House was demolished and rebuilt with an extension, and those works were completed by 12 September 2019. The claimant converted the office block into 109 residential units, rather than 130 units. On several occasions during 2017 and 2018, the Council wrote to the claimant advising the claimant to make an application for a certificate of lawful use. The claimant chose not to do so.
On 7 May 2019, Clive Inwards, the Council's Joint Interim Development Management Service Manager, sent an email to Jahid Akbar, a director of the claimant company, informing him that Ms Laura Church, the Council's Director of Place and Infrastructure, had asked him to review the case “ with a view to finding a satisfactory outcome for all parties”. He asked if Mr Akbar would be available to meet him on site for a site inspection. They arranged the site visit for 17 May 2019. Following that site inspection, Mr Akbar sent a number of emails seeking an update on the position. On 22 July 2019, Mr Inwards wrote that he had “ started drafting a letter regarding [Shire] House but I will need to agree this with my Manager before it is released”. However, no such letter was ever sent.
On 12 July 2019, there was a telephone conversation between Mr Abkar and Mr Inwards during which Mr Inwards confirmed that, at that time, the Council had no issues with the Prior Approval in relation to Shire House.
On 9 August 2019, Mr Akbar wrote to Mr Inwards:
“Can at least confirm what you confirmed over the phone that you have no issues with the development.
The reason is that we are in talks with LBC and they need this assurance before they will agree to occupy.
This very important as it will start to cost us money and loss of rent, I am sure that you can understand the predicament we are in.
You assured me that this the top priority on our last meeting on site 3 months ago.”
On 20 August 2019, Nazakat Ali, the Council's Interim Head of Housing Needs sent an email to Mr Inwards and to Tim Parrett, the Council's Building Control Inspector, stating:
“As you know we are in negotiations with Jahid to take on approx. 43 flats at [Shire] House. We can only proceed once we have your planning and building control approval.
Could you please let me have an update on the Planning and Building Control situation for [Shire] House.”
On 2 September 2019, Mr Inwards responded:
“Please accept my apologies for the delay in coming back to you but I had to review the file in the first instance.
I can confirm that the premises at [Shire] House has the necessary approval under reference 16/00766/COM that confirms that the prior approval of the Local Planning Authority was not required for the change from offices to residential use. Please let me know if you need anything further from me.” (Emphasis added.)
The same day, Mr Inwards sent an email to Mr Akbar, apologising for the delay and attaching a copy of the above email to his “ colleagues in Housing”. Mr Akbar again sought a copy of the letter to which Mr Inwards had referred, but none was forthcoming.
On 2 September 2019, Mr Ali indicated in a response to Mr Inwards that, based on Mr Inward's confirmation, and subject to Building Control approval, the Council “ will be looking to use approx. 33 units for Temporary Accommodation”. In the event, the Council did not place anyone in the units at Shire House as the then Director of Housing considered “ the units looked awful”.
The claimant draws attention to an email dated 13 November 2020 from a Private Sector Housing Officer in the Council's Private Sector Housing Enforcement department to Mr Akbar. The circumstances in which it was written are unclear, save that the Private Sector Housing Officer had visited one of the flats the previous day, it appears at the prompting of a tenant. In the email the Housing Officer stated that there were “ no other issues noted” beyond the “ minor issues discussed” during the visit. The Officer referred to the need to “ make good any cracks/blown plaster within the flat” and to ensure the fixed heaters were in safe working order. He also expressed appreciation for the offer to re-locate the tenant to another available flat “ with openable windows” and suggested (but did not require) the provision of thermal blinds for the skylights.
According to the Council's building control records, the demolition and extension of the original building at the Site was complete...
To continue reading
Request your trial
-
Waverley Borough Council v Anthony Martin Gray
...enunciated in R (SC) v SoS Work and Pensions [2022] AC 223 was summarised by Steyn J.in R (Devonhurst Investments Ltd) v. Luton BC [2023] EWHC 978 (Admin): “96. In my judgment, the claimant's submissions do not reflect the law. In ZH (Tanzania), the Supreme Court did not hold that article ......