The Lord Mayor and Citizens of the City of Westminster v Edward Davenport and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 30 July 2010 |
| Neutral Citation | [2010] EWHC 2016 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X05671 |
| Date | 30 July 2010 |
[2010] EWHC 2016 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Eady
Case No: HQ09X05671
Saira Kabir Sheikh (instructed by City of Westminster) for the Claimant
Juan Lopez (instructed by LT Law) for the Defendant
Hearing dates: 14—15 July 2010
Mr Justice Eady:
On 14 and 15 July 2010, I heard an application, made by Ms Sheikh on behalf of Westminster City Council against Edward Davenport and persons unknown, for an injunction under the provisions of s.187B of the Town and Country Planning Act 1990. What is sought in effect is the continuance on a permanent basis of an interim order granted on 13 January 2010 by His Honour Judge Seymour QC, sitting as a Judge of the High Court. It was not appealed, but I am now asked by Mr Davenport to discharge it.
Although there appear from the witness statements to be a number of factual disputes, the claim is brought under CPR Part 8, since that is specifically required by the rules: see CPR Part 8 Practice Direction 9.1. Ms Sheikh submits that there is nothing surprising about that because it reflects the approach to be taken by the court on such claims in the light of long established legislative and judicial policy. It is generally inappropriate for the court to second-guess assessments made by the relevant planning authority on the factors which have led to its decision to seek injunctive relief, such as whether there have been or are likely to be breaches of planning control and whether planning harm has resulted. Reference was made to the well known words of Simon Brown LJ (as he then was), as approved by the House of Lords, in South Bucks District Council v Porter [2003] 2 AC 558 at [53]:
“It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being given when he comes to exercise his discretion …”
The claim concerns activities at No 33 Portland Place, London W1, which are described at length in the witness statements submitted by the Council from Mr Roald Piper, a “team leader” from its planning department. The premises are owned by a company, Portland Place (Historic House) Ltd, which is not a party to these proceedings. They are occupied, although by no means permanently, by Mr Davenport. At the time of the January hearing, he was in prison and thus hampered in his ability to take effective steps to defend himself. Subsequently he has been released on bail and put witness statements before the court from himself (eventually four in number) and others, in which his case is fully set out.
The Council regards it as necessary to claim an injunction to prevent breaches of planning control because, on its case, there has for a number of years been persistent use of parts of the premises for commercial activities, whereas the only authorised use is residential. It is claimed that Mr Davenport has authorised these activities and/or has it within his power to prevent them.
So far as material, the injunction granted in January was to this effect:
“The Defendants are forbidden:
(i) from using any part of the Property known as 33 Portland Place, London W1B 1QE (‘the Property’) as shown outlined in black on the attached plan for any commercial or non-residential purposes.
(ii) from undertaking any development in respect of the Property as defined in section 55 of the Town and Country Planning Act 1990 without the express grant of planning permission. …”
Ms Sheikh contends that the Defendants, in putting forward their case, are not permitted to question or to seek to go behind an enforcement notice dated 14 June 2006, which was duly served and came into effect on 25 July and required compliance by 25 August of that year. The Council produced a contemporaneous record showing that the persons served were the “owner” and the “occupier”, both at the premises in question; the company secretary of the corporate owner at an address in Godalming; and HSBC Private Bank (Monaco) SA in Monaco. It is said that Mr Davenport was in Monaco at the material time, but that would not undermine the effectiveness of the notice.
It was not challenged by the statutory appeal process on any of the grounds available under s.174 of the Act. It would be open to a recipient to argue at that stage, for example, that the matters relied upon did not constitute a breach of planning control or that at the material time no enforcement action could lawfully be taken (because, for example, a material change of use had occurred more than 10 years prior to the date of the notice and had thus become “immune”). There was no such appeal, however, and Ms Sheikh accordingly submits that it is not open to the Defendants now to take such points in these proceedings. She placed great emphasis on the provisions of s.285 of the Act to the effect that the validity of an enforcement notice shall not be questioned in any proceedings whatsoever on any of the grounds on which an appeal could have been brought.
It was also pointed out that no advantage was taken of s.176 of the Act, which enables defects in such a notice to be corrected or its terms to be varied.
It is clearly important for the court to have regard to the contents of the enforcement notice itself, in so far as these are material for present purposes:
“1. THIS FORMAL NOTICE is issued by the Council because it appears to them that there has been a breach of planning control, under Section 171A(1)(b) of the above Act, at the land described below. The Council considers that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations.
2. THE LAND AFFECTED
The building and associated land at 33 Portland Place W1B 1QE shown edged with a thick black line on the attached plan.
3. THE BREACH OF PLANNING CONTROL ALLEGED
On 14 th July 1960 planning permission was granted for the use of no. 33 Portland Place, St Marylebone for diplomatic purposes by the Commissioner of the Governments of Sierra Leone and Gambia subject to conditions.
One of those conditions was Condition 2 which states:
‘This permission shall be personal to the Commissioner of the Governments of Sierra Leone and Gambia and shall not enure for the benefit of the land and in the event of the Commissioner ceasing to use the premises for diplomatic purposes the premises shall not be used for any other purpose than for residential purposes or such other purpose as shall have been previously approved by the Council.’
It appears to the Council that this condition has not been complied with because the premises are being used for a range of commercial and other non-residential activities in breach of this condition.
4. REASONS FOR ISSUING THIS NOTICE
It appears to the Council that the above breach of planning control has occurred within the last ten years.
The use of the premises for commercial and non-residential activities results in a loss of housing to other uses and impacts on neighbouring residential amenity to an unacceptable degree.
As such, the uses are contrary to policies Stra 11, H1 and H10 of the City of Westminster Unitary Development Plan adopted 1997 and policies Stra 14, Stra 16, H1 and Env 13 of the Replacement Unitary Development Plan.
5. WHAT YOU ARE REQUIRED TO DO
Stop using the property for commercial and other non-residential uses and use it only for residential purposes in accordance with condition 2 of the planning permission dated 14 th July 1960.
TIME FOR COMPLIANCE:
One month after this notice takes effect …”
This had been served following the recommendation contained in a report dated 22 March 2006 from the Director of Legal and Administrative Services. It identified various material changes of use as follows:
• as a location/venue for filming
• as a venue for holding Christmas parties
• as a venue for holding an Art Fair
• as a venue for holding a private party for a charity which included dinner and music
• as a venue for hosting a fashion show
• as a venue for 5 exclusive parties with music and dancing
• as a nightclub
• as an exhibition showcasing the latest technology (DigiWorld London)
• as a Masquerade Ball which included Acrobatic Circus stilt-walkers, fire jugglers, contortionists
• as a silent auction for art work.
It was said that these commercial and non-residential uses resulted in a loss of housing to other uses and impacted on neighbouring residential amenity to an unacceptable degree. Underlying the recommendation in the report were clearly a number of planning judgments, which were in due course reflected in the enforcement notice itself.
Ms Sheikh argues that the various planning assessments or conclusions contained in the enforcement notice are not now capable of challenge. In the words of Lord Hoffmann, “The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it”: see R v Wicks [1998] AC 92, 121F.
Mr Lopez, instructed on behalf of Mr Davenport, has submitted that the enforcement notice is actually a nullity and thus tantamount to “waste paper”, as it was put in Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196, 226, and R v Wicks, cited above. Indeed, in his skeleton argument he raised for the first time the suggestion that I should grant a declaration to that effect. Ms Sheikh took the procedural point that permission is required for a counterclaim to be made in Part 8 proceedings of this kind. On the other...
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