The London Borough of Brent v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Robert Palmer |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2051 (Admin) |
| Docket Number | Case No: CO/3240/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2051 (Admin)
Robert Palmer QC
sitting as a Deputy Judge of the High Court
Case No: CO/3240/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ashley Bowes (instructed by Prospect Law Ltd) for the Claimant
George Mackenzie (instructed directly by public access) for the Second Respondent
Hearing date: 12 July 2022
Approved Judgment
Robert Palmer QC sitting as a Deputy Judge of the High Court:
Introduction
The Appellant, the London Borough of Brent (“LBB”), appeals under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the decision of an Inspector appointed by the First Respondent (“the Secretary of State”) dated 24 August 2021 (“the Decision”). The Decision quashed an enforcement notice issued by LBB as the local planning authority on 11 December 2019, in respect of a terraced house at 51 Nutfield Road, London (“the Property”). The Second Respondent (“Mr Rothchild”) is the current owner of the Property.
LBB contends that the Inspector erred in law in concluding that a single storey extension to the Property was permitted development within the meaning of the Town and Country (General Permitted Development) (England) Order 2015 (SI 2015/596), referred to below as “the GPDO”, or as “the GPDO 2015” where it is necessary to distinguish it from its predecessors.
By letters to the Court dated 18 October 2021 and 10 November 2021, the Secretary of State informed the Court that he did not intend to defend the appeal, as he accepted that the Inspector had erred in law in the Decision. He has therefore taken no further part in proceedings. However, Mr Rothchild resists the appeal in full.
The main issue between the parties concerns whether the Inspector was right to proceed on the basis that a dwellinghouse in use as a “ house in multiple occupation” (“HMO”) within the meaning of Use Class C4 of the Town and Country Planning (Use Classes) Order 1987 (SI 1986/764) (“the Use Classes Order”) is necessarily also a “ dwellinghouse” within the meaning of the GPDO. Use Class C4 concerns “Use of a dwellinghouse by not more than six residents as [an HMO]”. Class A of Part 1 of Schedule 2 of the GPDO grants planning permission for “ the enlargement, improvement or other alteration of a dwellinghouse”, subject to various conditions and limitations.
i) Dr Ashley Bowes, counsel for LBB, submits that for an HMO to be considered a “dwellinghouse” for the purposes of the GPDO, it is not enough that it fulfil the well-known test in Gravesham Borough Council v Secretary of State for the Environment (1984) 47 P&CR 142 that it affords to those who use it the facilities required for day-to-day private domestic existence (“the Gravesham test”). It must also be occupied by, or in a manner akin to occupation by, a single household. He submits that the Inspector erred in law in failing to consider whether the Premises met that condition at the time the extension was built.
ii) Mr George Mackenzie, counsel for Mr Rothchild, submits that it is sufficient that a residential unit fulfil the Gravesham test to amount to a “dwellinghouse”, and that a dwellinghouse in use as an HMO within the meaning of Use Class C4 must necessarily also be a dwellinghouse attracting permitted development rights as such under the GPDO. He submits that the Inspector was correct to proceed on that basis.
There is also a second issue, which concerns whether, if the Premises did enjoy permitted development rights as a dwellinghouse, the Inspector erred in law by failing to consider whether the extension was in fact built in accordance with information previously provided to LBB, as it was required to be. Dr Bowes submits that the Inspector was bound to investigate this matter, even though LBB raised no such issue before the Inspector, and that he erred in law in failing to do so. Mr Mackenzie submits that the Inspector was not required to consider the issue at all, in the absence of any objection by LBB to that effect.
Permission to appeal was granted by Lang J on 7 December 2021.
The statutory framework
By section 55(1) of the 1990 Act, “development” is defined to include “building operations”, and the making of any “material change in the use” of buildings. “Building operations” are further defined to include “structural alterations of or additions to buildings”: section 55(1A).
Section 55(2) provides that certain operations or uses of land shall not be taken for the purposes of the Act to involve “development” of the land, including “(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.”
By section 57(1), planning permission is required for the carrying out of any development of land. By section 58(1), planning permission may be granted (amongst other means) by a development order. Section 59 empowers the Secretary of State to make a development order for the granting of planning permission, and provides that such an order may itself grant planning permission for development specified in the order or for development of any class specified.
Section 171A(1) provides that for the purposes of the Act, carrying out development without the required planning permission constitutes a breach of planning control. Section 172(1) provides that the local planning authority may issue an enforcement notice where it appears to them that there has been a breach of planning control, and that it is expedient to issue the notice. Section 174(1) provides that a person having an interest in the land to which an enforcement notice relates may appeal to the Secretary of State against the notice. The grounds upon which an appeal may be brought are set out at section 174(2)(a)-(g).
Section 289(1) provides for a right of appeal against the Secretary of State's decision on an appeal against an enforcement notice “on a point of law”.
The GPDO 2015
Pursuant to his power under section 59 of the 1990 Act, the Secretary of State made the GPDO 2015. It provides for the granting of planning permission for certain classes of development. Those classes are set out in Schedule 2.
Part 1 of Schedule 2 is concerned with development within the curtilage of a dwellinghouse. “Dwellinghouse” is not defined by the GPDO, other than at Article 2(1) of the GPDO so as to exclude from its scope “a building containing one or more flats, or a flat contained within such a building.” A “flat” is then defined to mean “a separate and self-contained set of premises constructed or adapted for use for the purpose of a dwelling and forming part of a building from some other part of which it is divided horizontally.”
Class A of Part 1 permits “the enlargement, improvement or other alteration of a dwellinghouse”, subject to exclusions, conditions and limitations which then follow in paragraphs A.1 to A.4.
Small single storey extensions to a dwellinghouse are permitted, provided that they extend beyond the rear wall of the original dwellinghouse by no more than 3 metres (or 4 metres in the case of a detached dwellinghouse), and do not exceed 4 metres in height: see paragraph A.1(f)
Paragraph A.1(g) provides that larger single storey extensions to a dwellinghouse may also be permitted, where they extend beyond the rear wall of the original dwellinghouse by no more than 6 metres (or 8 metres in the case of a detached dwellinghouse), and do not exceed 4 metres in height. However, in the case of these larger extensions, the grant of permission is made subject to a system of prior notification and approval, pursuant to the conditions set out in paragraph A.4. In broad summary, those conditions require that:
i) Before beginning the development the developer must provide to the local planning authority a written description of the proposed development including its dimensions, a plan indicating the site and showing the proposed development, and certain other information: paragraph A.4(2);
ii) The local planning authority must then notify each adjoining owner or occupier about the proposed development by serving on them a notice which describes the development by setting out the written description provided to the authority by the developer, along with its address and the date by which representations are to be received: paragraph A.4(5);
iii) Where any owner or occupier of any adjoining premises objects to the proposed development, the prior approval of the local planning authority is required as to the impact of the proposed development on the amenity of any adjoining premises: paragraph A.4(7);
iv) The development must not begin before either the developer receives from the local planning authority written notice either that their prior approval is not required or that such prior approval has been given, or before 42 days have elapsed since the original information was provided to the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused: paragraph A.4(10);
v) Where prior approval is not required, the development must be carried out in accordance with the information (i.e. the written information and the plan) provided at the outset, unless the local planning authority and the developer agree otherwise in writing: paragraph A.4(11)(b).
Part 3 of Schedule 2 of the GPDO 2015 is concerned with Changes of Use. Class L of Part 3...
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