Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE GIBBS
THE QUEEN ON THE APPLICATION OF ZZZ INCORPORATED
(CLAIMANT)
-v-
SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS
(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MISS M MACPHERSON appeared on behalf of the CLAIMANT
MR M GIBBON appeared on behalf of the DEFENDANT
Friday, 11th April 2003
J U D G M E N T
MR JUSTICE GIBBS: The appellant, ZZZ Incorporated, brings this appeal on a point of law under section 289 of the Town and Country Planning Act 1990 ("the Act"), permission having been given by Pitchford J.
The decision appealed against is that of the Secretary of State for Transport, Local Government and the Regions by his Planning Inspector, Mr Peter Burley. The Inspector had conducted an enquiry and site visit on 13th August 2002 and notified his written decision on 8th November 2002. The decision was upon an appeal, which proved unsuccessful, by the appellant against an enforcement notice issued by the local planning authority, the London Borough of Camden, dated 19th December 20001. The premises to which the enforcement notice related was a residential property at 46 Shoot Up Hill, London NW2 3QB.
It is common ground that at the time of the enforcement notice, the property had been the subject of internal works, which had converted it from its previous layout into nine separate, self-contained flats or studio flats.
The terms of the enforcement notice, so far as material, were as follows:
The Breach of Planning Control Alleged.
Without Planning Permission:
The unauthorised change of use of a house in multiple occupation to 1 one-bedroom self-contained flat, and 8 self-contained studio flats".
This paragraph is quoted as amended or corrected by the Inspector, as to which no point is taken.
Reasons For Issuing This Notice.
It appears to the Council that the above breach of planning control has occurred within the last 4 years.
The unauthorised development results in the loss of non-self-contained bedsitting accommodation with shared facilities (affordable accommodation), contrary to Policy HG17 of the London Borough of Camden Unitary Development Plan, which seeks to retain such accommodation in support of its aims to provide for a full range of housing types, including affordable housing to meet the needs of the population.
The Council do not consider that planning permission should be given because planning conditions could not overcome these problems.
What You Are Required To Do.
The use of the whole property as 1 one-bedroomed self-contained flat and 8 self-contained studio flats shall permanently cease.
The whole property shall be permanently rearranged to provide non-self-contained bedsitting accommodation, with shared facilities.
You are to comply with the above requirements within 6 months of this notice taking effect".
The appellant within the time allowed appealed against the decision to the Secretary of State. That appeal was made under section 174 of the Act and relied on four of the permitted grounds under section 174(2). Grounds (a) and (d) are no longer relied on in the present appeal. It was contended under (a) that on planning grounds planning consent ought to have been granted; under (d) it was contended that enforcement action was too late because the use had existed since September 1997.
The grounds which remain relevant to the present case are in detail as follows:
That the breach of control alleged in the enforcement notice has not occurred as a matter of fact ...
The property was never a house in multi occupation. The use prior to its conversion was as five self-contained units pursuant to appeal
T/APP/X5218/A/88/086171/P4".
And:
The steps required to comply with the requirements of the notice are excessive, and lesser steps would overcome the objections ... The Council need only request the return of the building into five flats in the event the defective notice is upheld".
In the event, the appellant was compelled in the light of evidence at the enquiry to abandon in part and/or modify these two remaining grounds. The basis of the assertion that the previous use of the property had been as five self-contained flats was the planning permission referred to under the first ground and granted on appeal on 12th July 1988 permitting such use. It emerged, however, that this planning permission had lapsed without ever being implemented. Issues, however, still remained as to what the previous use had been, whether it was lawful, and if it was unlawful, what the lawful use was or would have been. Plainly, the outcome of these issues would affect, at any rate potentially, the validity of the enforcement notice, in that arguably it would be wrong for the planning authority to require the appellant to carry out works the effect of which would be to reinstate the property to a condition consistent only with the previous unlawful use.
In reality, as Miss Macpherson for the appellant wisely conceded, there were only two possible lawful uses: either a dwelling house, which is use class C3 under the Town and Country Planning (Use Classes) Order 1987; or as a house in multi occupation ("HMO"), which, whilst not a separate use class, is recognised as a distinct legal category (see Rogers v Islington London Borough Council, 27 Estates Gazette, 178), and is the subject of statutory control, as well as being recognised in the second respondent's planning policies.
Before the Inspector, it was contended by the appellant, inter alia, that there was no established lawful use of the property as an HMO, as the second respondents were submitting, and, that being the case, the requirement at paragraph 5(2) of the enforcement notice was invalid in law, and in any case it was either excessive or too imprecise to be effective. The requirement, it will be recalled, was effectively to convert or reconvert the property into an HMO.
In dealing with these issues, the Inspector prefaced his remarks by noting that the appellant did not pursue the argument based on the 1988 planning permission, but still contended that the description of the breach was incorrect. He went on as follows:
Turning to the issue of whether the notice is correct to describe the previous use of the property as a house in multiple occupation, I acknowledge that no permission has ever been granted for such a use. However, the evidence that was presented at the 1988 appeal clearly refers to the previous use of the premises as being a house in multiple occupation. It would appear that the property was still being used primarily for this purpose when the Council visited it in 1993. There is no indication that this changed between then and when the appellant commenced the works to divide the property into 9 self-contained units in 1997. Indeed the appellant's builder appears to have confirmed to the Council that the prior use was as a house in multiple occupation.
I appreciate that the evidence from electoral registers shows different numbers of people occupying the property at various times with only one person for instance listed in 1989. However, houses in multiple occupation often have a very high turnover of tenants. As such I consider that the evidence of the electoral register as to the number of people occupying such a property at any given time is unlikely to be very reliable. It is even less predictive, in my view, of the manner in which the property was occupied. I am not satisfied therefore that this evidence is sufficient to establish that the house was not in multiple occupation for a period of at least 10 years prior to the change of use occurring.
I accept that firm evidence of multiple occupation before 1988 is less clear. However, there is nothing to contradict the Council's assertion that the property was used for this purpose for some time prior to that date. While the property appears to have been vacant at certain times during the relevant period, there is little to indicate the length of any vacancy. There is nothing to suggest that any gap in occupation was of sufficient length to have amounted to a material break in the use that would have prevented the Council from taking enforcement action. There is certainly no indication that the house was put to any other use during these gaps. Consequently, I am not satisfied that there is sufficient evidence to conclude that the previous lawful use of the dwelling was not as a house in multiple occupation. I find therefore that it is appropriate for the notice to refer to this use in the description of the breach.
Even if I had concluded otherwise, I am not satisfied that this would have warranted allowing the appeal under ground (b). There is no doubt that a change of the use of the premises to 9 self-contained units has occurred judging from the evidence and what I saw during my site visit. This use does not have the benefit of planning permission. While the previous use of a site is often quoted in the description of the breach, there is no legal obligation for this to be done. It seems to me therefore that had I found that there was genuine doubt as to the previous lawful use in this case it would have been open to me to merely delete the reference to the preceding use. In my view the notice would still be sufficiently clear in its amended form to enable the appellant to know what they had done wrong. In my view such a correction would not have caused any injustice as the matter was fully discussed as the Inquiry.
However, for the reasons I have already given I see no need to make such a correction".
Later in his decision, the Inspector continues:
I note the suggestion that the requirements of the notice do not make sufficiently clear what is required, particularly in respect of the rearrangement of the property, but I do not accept this. In my view the requirement to rearrange the property so as to provide non-self-contained bedsitting accommodation with shared facilities is entirely comprehensible. I accept that the notice does not specify exactly how this is to be achieved. However, I do not consider that this makes the notice unduly imprecise. Indeed I consider that it leaves the appellant a commendable degree of flexibility as to how to rearrange the property so as to provide the non-self-contained accommodation and shared facilities. Accordingly the ground (f) appeal also does not succeed".
Then, in his overall conclusions, he says as follows:
"I find that there is insufficient evidence to conclude that the notice is incorrect in stating that the previous lawful use of the premises was as a house in multiple occupation. The appeal under ground (b) therefore does not succeed, subject to a minor amendment to the description of the breach to remove the reference to the number of bedsitting rooms that previously existed".
Further:
"I do not consider that the requirements of the notice are either excessive or imprecise. The appeal under ground (f) therefore does not succeed either".
The grounds of the appeal before this court, as settled by counsel, are as follows:
"In upholding the requirement of the enforcement notice to 'permanently rearrange' the appeal property to provide 'non-self-contained bedsitting accommodation with shared facilities' the Inspector acted unreasonably in that:
he erred in holding that the steps required by the notice to be taken were stated with sufficient clarity: in fact they did not inform the owner what actually had to be done;
he was not entitled on the evidence to conclude that the previous lawful use of the appeal property was without doubt as a house in multiple occupation;
he unfairly required the rearrangement of the appeal property to provide non-self-contained bedsitting accommodation with shared facilities without first satisfying himself that that was actually its lawful use;
he was not entitled to rely on the negative finding that he was
'not satisfied that there is sufficient evidence to conclude that the previous lawful use of the dwelling was not as a house in multiple occupation';
in the premises the claimant has been severely prejudiced".
When these ground were argued before me, both in counsels' skeleton arguments and in oral submissions, they crystallised in effect into two distinct but interrelated issues:
was the Inspector in error in approaching the matter, as it is common ground that he did, that the burden of proof was on the appellant to establish that the previous lawful use was not an HMO? and
was the Inspector wrong in law to uphold the requirement in the enforcement notice at paragraph 5(2) either:
because the previous lawful use was not shown to be an HMO; and/or
because the requirements were in any event too imprecise?
The statutory framework governing the issues is familiar, but it is still necessary in the light of the particular points taken in the case to set them out at least in part.
As to the issue of an enforcement notice:
"172(1) The local planning authority may issue a notice (in this Act referred to as 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, having regard to the provisions of the development plan and to any other material considerations".
As to the contents and effect of the notice:
"173(1) An enforcement notice shall state --
the matters which appear to the local planning authority to constitute the breach of planning control; and
the paragraph of 171A(1) within which, in the opinion of the authority, the breach falls.
A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.
An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve wholly or partly any of the following purposes.
Those purposes are --
remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or
remedying any injury to amenity which has been caused by the breach.
An enforcement notice may, for example, require --
the alteration or removal of any buildings or works;
the carrying out of any building or other operations;
any activity on the land not to be carried on except to the extent specified in the notice ..."
As to appeal against an enforcement notice:
"174(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice whether or not a copy of it has been served on him.
An appeal may be brought on any of the following grounds ...
that those matters have not occurred [i.e., the matters stated in the notice as constituting breach of planning control have not occurred];
...
that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach".
Miss Macpherson submits in summary as follows:
that the Inspector wrongly accepted the Council's assertion that the property had been in HMO use for more than ten years;
that he incorrectly placed on the appellant the burden of proving otherwise;
that he therefore erred in accepting the description of the breach of planning control in the enforcement notice as change of use from HMO to self-contained flats; and
that in upholding the requirement of the enforcement notice for the whole property to be rearranged as an HMO failed to have regard:
firstly, to the fact that there was no entitlement to require restoration of use as an HMO unless that was the lawful use; and
that in any event the steps to be taken were excessive and/or unclear".
She relies on the general proposition in civil law, which she submits is applicable to the present case, namely that a person asserting a fact which is not self-evident has the burden of proving it (see Robins v National Trust (1927) AC 515, 520, in the speech of Viscount Dunedin; Rhesa Shipping Co SA v Edmunds & Another, "The Popi M", (1985) 2 All ER 712, House of Lords).
She submits that since, as is conceded, the Inspector placed the burden on the appellant, he erred in law. Furthermore, she submits that such evidence as there was on the question of whether there had been ten years' use as an HMO was wholly inadequate to enable the Inspector to resolve that issue in the second respondent's favour. She relies on passages in the decision, Thurrock Borough Council v Secretary of State for Environment, Transport and the Regions (2001) JPL 1388, especially at paragraphs 18 and 19 at page 1399; and on appeal at (2001) EWCA Civ 226, 23 to 27.
As regards the steps required of the appellant, she acknowledges that the Inspector, in his approach as to whether or not more detailed particulars should be given of what was needed to comply with the notice, may have been trying to be kind to the appellant. However, she argues that he nevertheless got the answer wrong in not finding the requirement in the notice to be too imprecise.
Mr Gibbon for the defendants argues that the burden on the question of previous lawful use was clearly on the appellant. He submits that the statutory scheme vests the primary decisions on the issue and content of the enforcement notice on the planning authority as an administrative body. Such decisions are open to challenge, but only through the statutory route and on the statutory grounds permitted by section 174, which he says are for an appellant to establish. He relies for that submission on general appellate principles, but also on a decision of Widgery J, as he then was, in Nelsovil Ltd & Ors v Ministry of Housing and Local Government (1962) 1 WLR 404, in particular a passage at page 408 of that judgment.
Miss Macpherson points out that the observations there about the burden of proof were made in the context of a different factual matrix. Mr Gibbon, whilst accepting that, submits that they reflect a more general principle.
Mr Gibbon further submits that on any view there can really have been no other answer on the evidence before the Inspector but that the previous lawful use was as an HMO; at the very least, it was a finding well open to him on the facts. Mr Gibbon submits finally that, whilst the requirement in paragraph 5(b) of the enforcement notice may not have descended to great detail, it was quite clear what it meant and had the merit of leaving the most advantageous method of compliance to the appellant to decide.
In coming to my conclusions on this appeal, it is perhaps noteworthy to see the issues first of all in context. The main submission of the appellant before the Inspector as to previous lawful use had failed. This radically altered the appellant's case on ground (b). It only left, as already mentioned, two alternative possibilities as to the previous use: a dwellinghouse, or an HMO.
The irony of this situation becomes apparent when one considers the logical outcome of the appellant's contention. A favourable outcome, from the appellant's point of view, on the issue would probably result in more works and expense and ultimately be less lucrative to the appellant, since it would be required to convert the property not into an HMO but into a dwellinghouse. Further, it is not now in issue, and was not in the event in issue before the Inspector, that the development, subject to the enforcement notice, was in fact in breach of planning control.
However, I remind myself that these considerations are not determinative of the appeal. If the Inspector got it wrong then, subject to the exercise of discretion, his decision should be quashed.
I turn, therefore, to the question of the burden of proof. In approaching this matter, it has to be borne in mind that the procedure before the Inspector is a statutory appellate procedure. At the same time, it is informal and hands-on in nature. In this case, it involved an oral hearing and a site visit.
Since the procedure is appellate, it was in my judgment for the appellant to establish one or more of the statutory grounds for challenging the enforcement notice. The wording of section 172, which empowers the LPA to issue the notice, is in my view an important starting point. The wording does not require the LPA to prove any fact before issuing the notice. The requirement is that it must appear to the LPA that there has been a breach of planning control and that it is expedient to issue the notice. Provided that it does genuinely appear to the authority that the conditions are satisfied, the notice is lawful, subject to the appellant establishing one or more grounds of appeal.
It appeared to the LPA in this case that the previous lawful use was as an HMO and that there had been breach of planning control by reason of the conversion into self-contained flats. It cannot reasonably be suggested that it did not genuinely so appear to the LPA on reasonable grounds.
At one stage, Miss Macpherson seemed to suggest that the LPA's view on the use as an HMO was Wednesbury unreasonable, but that argument cannot I think seriously be sustained.
As regards the LPA's view about the breach of planning control, that view turned out to be entirely correct. Under those circumstances, it was in my judgment incumbent on the appellant in the context of this case to establish on appeal either:
that there had been no breach of planning control, which it was unable to do; or
to establish that the steps required to comply with the notice were excessive.
Point (2) could effectively only be established if there was an existing permission relating to five self-contained flats which, as it turned out, again could not be established.
In making this finding as to the burden being on the appellant, I accept Mr Gibbon's submission that the statutory scheme makes clear where the burden lies on appeal. Further, in my judgment, there was ample material wherever the burden lay upon which the Inspector could form the view that the previous lawful use was as an HMO. Certainly, he was entitled to conclude that the appellant had failed to prove the contrary.
I do not consider it helpful or necessary to rehearse each and every detail of the evidence available to the Inspector, but I shall refer to a few prominent points raised in argument:
the lack of clarity in firm evidence of multiple occupation before 1988 was mentioned by the Inspector. The evidence about it was the statement by the LPA in May 1988 for the purposes of the current planning application to this effect:
"the house is now vacant and was previously in multi-occupation".
In the light of the Inspector's findings in the present case at paragraph 16, the material date for the purposes of a ten year period of use would be a commencement date of around December 1997. It was open to the Inspector to conclude that use as an HMO commenced before then. There was nothing to rebut that conclusion. Indeed on such evidence as there was, it was open to him to find that use as an HMO commenced before then on the balance of probabilities;
there is no significant evidence that during the relevant period the property was ever used as a private dwellinghouse. On the other hand, there is significant evidence that the layout of the building was consistent with an HMO (see bundle 51, memorandum of meeting with Mr Green, 19th December 2000); and see also a letter of 19th November 1997 in which the appellant's own builder told the LPA planning officer that the appellant had assured him that the property was going to stay as a house in multi-occupation. That letter could be taken to imply an awareness by the appellant itself that, for at least a significant period, the use in question had subsisted, as well as a recognition that the LPA may well not countenance a change of use;
in the light of those matters and others, the Inspector was entitled to form the view that the property had indeed been used for the necessary period as an HMO, or at the very least that the LPA's conclusion that it had been so used was not rebutted in the course of the appeal or at all.
There remains the issue about whether the requirement in paragraph 5(2) of the enforcement notice was sufficiently clear. It is true that there was no precise method prescribed for the permanent rearrangement for the purpose of providing non-self-contained bedsitting accommodation with shared facilities. There were various ways, no doubt, in which that purpose could be achieved.
The purpose itself, however, was clear enough. There is a clearly ascertainable distinction between self-contained flats and units with shared facilities. The fact that the notice left a discretion to the appellant as to how it might more conveniently and economically for its own purposes obtain the objective is not a matter to be held against the LPA; rather, the contrary.
Miss Macpherson concedes that the Inspector may have been attempting to be kind to the appellant, but submits that in so doing he nevertheless fell into error.
After carefully considering that submission, I am of the view that he was entitled to find as he did that the requirement was sufficiently precise, whilst leaving the appellant a "commendable degree of flexibility". Such flexibility would allow the appellant, inter alia, to retain the maximum number of alterations and additions already carried out, consistent with the permitted use. In this regard, as Mr Gibbon points out, it had in fact been the appellant's choice to proceed with the development at the risk of enforcement proceedings, rather than to apply for planning permission in the first place.
As a postscript, I would comment that at first sight it might seem to an outside observer slightly curious that an LPA should prefer the use of premises such as the appellant's as an HMO to its subdivision into self-contained flats. However, it should be noted that the LPA's decision in this regard was consistent with its own policy, namely HG17 of the Unitary Development Plan, in seeking the retention of low rent accommodation in non-self-contained units, and the policy decision in that regard, as applied to this property, was not challenged in the course of the present appeal.
Thus, for all the reasons given, the appeal must fail, since the Inspector was, as I find, entitled to reach the decisions which he did on the section 174 appeal.
MR GIBBON: My Lord, I am very much obliged.
As to the question of costs, I am pleased to say that the parties are agreed that the costs should lie with your Lordship's finding, either way. There was an agreed figure for the Secretary of State's costs of £5,093.75.
MR JUSTICE GIBBS: Thank you very much. I make that order, and I am grateful to both counsel for their assistance. Thank you.