The Queen (on the application of Mr Deep Banghard) v Bedford Borough Council
| Jurisdiction | England & Wales |
| Judge | Ms Lieven QC |
| Judgment Date | 29 September 2017 |
| Neutral Citation | [2017] EWHC 2391 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 September 2017 |
| Docket Number | Case No: CO/4939/2016 |
[2017] EWHC 2391 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Nathalie Lieven QC
(sitting as a Deputy High Court Judge)
Case No: CO/4939/2016
Ms Annabel Graham Paul (instructed by Muhammad Gaffar of Bond Adams) for the Claimant
Jack Smyth (instructed by Harjit Gill of Bedford Borough Council) for the Defendant
Hearing dates: 19 th July 2017
This is an application for judicial review of the decision of the Defendant ("the Council"), on 22 August 2016 to decline to determine a planning application, pursuant to s.70C of the Town and Country Planning Act 1990 ("the TCPA"). The application was dated 22 July 2016 and was for "alteration to the building and use of building for storage ("Class B8")".
The two issues in the case are whether the Council had the power under s.70C to decline to determine the application and, if they did have the power, whether they exercised it rationally on the particular facts before them.
In 2010 the Council had granted planning permission for the "erection of outbuilding for the purpose of storing vehicles". The Claimant did construct a building on the site, and indeed on the same footprint as the building which is the subject of the permission. However, it was the Council's view that that building was being used as a dwelling house and was not in the same form as the permitted building.
On 2 July 2015 the Council issued an enforcement notice ("EN") pursuant to s.172 of the TCPA. The breach of planning control alleged in the EN was "Without planning permission the unauthorised erection of timber-clad self-contained dwelling house shown edged in green on the attached plan". The requirements of the EN were to "(i) …cease residential use of the building … (ii) demolish the building… and (iii) remove permanently the resulting materials from the land after compliance with step (ii)".
The Claimant appealed the EN under s.174 TCPA on grounds s.174(2)(a), (b), (f) and (g). The Inspector dealt first with ground (b), the allegation that the breach had not occurred. The Claimant (at that point the appellant) argued that although the building was now being used as a dwelling it had been erected and used as a storage building, albeit that subsequently the use had been changed to a dwelling house. The Inspector rejected this argument, finding at Decision Letter paragraph 16 ("DL16") that the 2010 planning permission had not been implemented and the building had been constructed as a dwelling house, without any intervening use. He further found that the building had not been constructed in accordance with the approved plans and was materially different from the approved building.
"16. When the differences described above are taken together the building, as constructed, is materially different to that approved in terms of its size, appearance and functionality. It is taller; the roof pitch is steeper; the internal volume is much greater; a different roof covering has been used; the vehicular access was not provided; and the specification of the roof trusses and use of cavity walls go beyond what would normally be necessary for a simple storage building. Consequently, on the balance of probability, I conclude that the 2010 permission was not implemented. Rather, the design of the building would indicate that it was not intended for storage purposes but was constructed as a dwelling without any intervening use."
The Inspector then considered the ground (a) appeal, that planning permission should be granted for the breach of planning control. The claimant argued that if the Inspector was minded to dismiss the deemed application for a dwelling house, then a holiday occupancy condition should be imposed. The Inspector indicated some doubt about whether he would be entitled to take that course under s.177, but in any event he found that there was no policy support for such a residential use or for a holiday house use. He therefore dismissed the ground (a) appeal.
The Inspector next considered the ground (f) appeal. The Claimant argued that it would be excessive to require the demolition of the building, and that the EN could be altered to require adherence to the 2010 permission. In respect of this argument the Inspector said as follows:
"60. The appellant contends that it would be excessive to require the demolition of the building and that the notice could be altered to require adherence to the 2010 permission. In essence, the ground (f) appeal invites me to grant planning permission for the 2010 development under ground (a) and amend the requirements of the notice under ground (f). However, for the reasons set out in relation to the ground (b) appeal, I have concluded that the development did not accord with the 2010 permission and that the alleged breach has occurred as a matter of fact. In other words, the building was erected as a dwellinghouse. Consequently, the 2010 permission was not commenced and that permission has now expired. There is no 'fall-back' position in relation to the 2010 permission.
61. Whilst Inspectors have relatively wide powers to determine if there is an acceptable solution short of the complete remedy of the breach, those powers do not enable me to grant of planning permission for a development other than for those matters stated in the notice as constituting the breach of control, whether in relation to the whole or any part of those matters. In closing submissions the appellant acknowledges that 'it is a little strained to find that the matters in the 2010 permission form part of the matters constituting the breach'. I cannot conclude that the 2010 permission forms part of the alleged breach; not only is the building considerably different in form and functionality, the proposed use is different to that alleged in the notice.
….
63. Therefore, it is not open to me to grant planning permission for the 2010 …
64. Following the submission of the enforcement notice the appellant submitted two planning applications relating to the appeal site to the Council. The first proposed the erection of a holiday home with storage and home office at first floor level ancillary to the main dwelling at Vicarage Farm and the second proposed the erection of a building for the storage of agricultural equipment. The Council declined to determine both of those applications under powers granted by section 70C of the Act. The powers granted under s70C enable a council to refuse to determine an application if granting planning permission would involve granting planning permission in respect of the whole or any part of the matters specified in an enforcement notice as constituting a breach of planning control. The reasons for their actions were set out in a letter to the appellant dated 11 November 2015 and the conclusions of that letter were that the proposals would involve granting planning permission in respect of the whole or part of the matters specified in the notice
65. In relation to the refusal to determine the agricultural store the Council put forward arguments to the Inquiry to the effect that there was no evidence that the building was erected as an agricultural store and that the building was not in accordance with the approved plans of the 2010 permission. In effect, their case to the Inquiry was that the 2010 permission did not form part of the development as constructed. Their arguments in that respect would appear to contradict the decision they took in relation to s70C of the Act. That said, I note that part of the appellant's case was that the 2010 permission was implemented and subsequently converted to residential use, thereby representing a fall-back scenario. In that respect, the status of the 2010 permission was clearly of relevance to the alleged breach. Had I found with the appellant on that point, I would have concluded that the 2010 permission had been implemented and there would have been no need to consider the need to grant planning permission for the development.
66. However, regardless of the above, it is beyond the scope of this Inquiry to determine whether the Council's refusal to determine the applications was legitimate. It would have been open to the appellant to seek a judicial review of the Council's decision. Furthermore, the Council's decision in relation to s70C does not alter my conclusions on the question of whether the 2010 permission forms part of the alleged breach. For the reasons set out I conclude that it does not.
67. The Council noted at the Inquiry that the purpose of the notice was to remedy the breach of planning control, as opposed to remedying any injury to amenity. Having regard to my comments above, I find that no lesser steps are available that would remedy the breach. Accordingly, the appeal on ground (f) must fail."
The Inspector extended the time for compliance in respect of the physical building under ground (g) for steps (ii) and (iii) to 9 months, but upheld the EN.
After the appeal decision the Claimant submitted the planning application (16/02301/FUL) which is the subject of this judicial review. That application is for a storage use of the building, thus the same use as was granted permission in 2010. The application included material changes to the building. It was not possible on the material before me to be confident about all the physical changes from the building that had been constructed, but it was clear that the door was to be an "up and over" roll door, and the application made clear that the roof was to be lowered.
The Council declined to determine this application under s.70C, as they also had done on the earlier application referred to in the Inspector's decision letter. The decision under s.70C...
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