Westminster City Council, R (On the Application Of) v First Secretary of State

MR JUSTICE SULLIVAN: This challenge under section 288 of the Town and Country Planning Act 1990 ("the Act") relates to an inspector's decision letter dated 25th February 2003. In that decision letter, the Inspector allowed an appeal by the first named interested party, Mr Langdon, against an enforcement notice issued by the claimant, quashed the notice and granted planning permission on the application deemed to have been made under section 177(5) of the Act for:

Mr and Mrs Langdon have lived in Ryders Terrace since 1988, first in number 9 and then, from 1993, in number 13. In 1994, they applied for planning permission for a roof terrace on the existing flat roof at number 13. Planning permission was refused and an appeal was dismissed in 1994.

Following investigations by the claimant's enforcement team in 2001, applications for a retrospective grant of planning permission and for a certificate of lawful use for the retention of the structures on the roof and the use of the roof as a roof terrace respectively were made in 2002.

Both applications were refused on 4th March 2002. The sole reason for refusing the planning permission related to the adverse visual impact of the structure upon the St John's Wood Conservation Area. The application for a certificate of lawful use was refused because insufficient information had been submitted to support the claim that the use of the roof of the property had been in existence for at least four years prior to the date of the application. An informative added:

The structures were not removed and the use continued. The Council concluded that they had been wrong to refuse the certificate, since the use of the roof as a roof terrace incidental to the use of number 13 as a dwelling house would not be development by virtue of section 55(2)(d) of the Act. But so far as the structures were concerned, the Council issued an enforcement notice on 27th September 2002.

That alleged "without planning permission, the installation of timber decking, planters, fencing, seating, roof access housing, storage facilities and water tank housing at roof level", and required the removal of those structures within three months.

Two reasons were given for issuing the notice. The first was concerned with the obtrusive appearance of the structures in this part of St John's Wood conservation area. The second reason for issuing the notice was as follows:

The reminder of the explanation then described the properties that would be so affected.

Mr Langdon appealed against the enforcement notice on ground (d) in section 174(2) of the Act, contending that it was too late to take enforcement action in relation to the structures because they had been there for more than four years.

There was no appeal on ground (a), that planning permission ought to be granted, although, because the fee had been paid, the Inspector had to consider the deemed application for planning permission.

In support of the appeal on ground (d), the statement in support of the grounds in the appeal form set out the "history of the use of the roof as a terrace". That history paraphrased the contents of three supporting affidavits, which were provided to substantiate the "claim that the roof has been used as a terrace for at least 14 years". The three supporting affidavits were provided by Mr Lewis, the original owner of 13 Ryders Terrace, Mr Croft, the builder who had worked on 13 Ryders Terrace since 1992, and Mr Langdon himself.

Mr Lewis explained in his affidavit that he had acquired number 13 in 1984. When he acquired the property:

He says that he met the Langdons when they moved into the house immediately opposite in 1988, and adds:

"5. By the time Jeni and Ian Langdon moved into number 13 ... the roof decking and screening had become dangerous as untreated wood had been used and it had rotted to a dangerous extent, as had the water tank cladding, screening, and roof access area.

6. It can be established that for the past 18 years the flat roof has been used as an area to sit on, sunbathe on and for recreational purposes without any complaint ..."

Mr Croft recollects going to number 13 in the latter part of 1992, when Mr and Mrs Langdon were considering buying it. He had been asked to quote for redecorating the house "including replacement of the seriously rotted decking and screening on the roof, the replacement of the rotted water tank holder on the roof, and for the hatch which also had rotted, and gives access to the roof from within the property".

He says that in 1993 he attended to the water tank housing and roof hatch repairs and at that time:

He then says that in May 1999 he commenced a complete renovation of the house and that included attending to the water tank housing on the roof, renovating the roof hatch and the replacement of the roof decking, which had been removed some years earlier.

Mr Langdon says that he and his wife moved into number 9 in 1988. Before purchasing number 13, they visited it numerous times on a social basis. Having said that his wife acquired number 13 in 1993, and shortly thereafter the property was transferred into their joint names, he says this:

He then says:

The appeal was dealt with by way of written representations. The Council's statement of case noted that there had at that stage been no ground (a) appeal, but said that if the planning merits were to be considered, it would rely on the enenforcement notice report.

That report was apparently not sent to the Inspector, but that is of little consequence, since the enenforcement notice itself set out in reasonable detail the claimant's reasons for issuing it.

In response to the Council's statement, Mr Langdon's further written representations included the following points:

The Inspector dealt with the ground (d) appeal in paragraph 1 of his decision letter. Having said that the onus was upon Mr Langdon to demonstrate that the operational development had been substantially completed more than four years before the date of the notice, that is to say before 27th September 1998, he continued:

He therefore concluded that the ground (d) appeal failed.

In paragraph 2 of the decision letter, the Inspector identified the main issue on the deemed application:

He then set out the relevant planning policies in the City of Westminster Unitary Development Plan.

In paragraph 4 of his decision letter, the Inspector said this:

In paragraphs 5 to 7 of the decision letter, the Inspector considered the issue of visual impact and concluded that the overall appearance of the St John's Wood Conservation Area would be unharmed and that the structures did not look out of place in this part of the Conservation Area and were therefore acceptable. The Council does not challenge the Inspector's conclusions in paragraphs 5 to 7 of his decision letter.

The Inspector considered the issue of visual impact without prejudice to the question whether in fact planning permission was required for all of the structures the subject of the enforcement notice. The first three sentences of paragraph 5 of the decision letter are as follows:

The Inspector then considered visual impact "whatever the status of these items".

The Council challenges paragraph 4 of the Inspector's decision letter on four grounds. Grounds 1 and 4 were not included in the original claim form. On behalf of the Secretary of State, Mr Brown did not object to Mr Maurici's application on behalf of the claimant to amend the claim form to include these two grounds.

As amended, the four grounds are as follows:

(1) The Inspector erred when dealing with the fall back position in relation to the deemed application. The claimant accepts that the flat roof could lawfully be used as a roof terrace for purposes incidental to the use of number 13 as a dwelling house, but it is submitted that there "was no evidence that in the past the roof area had been used as a private sitting out space without the installation of timber decking, planters, fencing, seating".

(2) Even if there was an evidential basis for the Inspector to have had regard to the fall back position that the roof would be used as a roof terrace in any event, he failed to compare the likely extent of such use with and without the operational development the subject of the enforcement notice. Alternatively, he failed to give adequate reasons for concluding, if he did so conclude, that there would be no material difference in the use of the roof with or without the development the subject of the notice.

The Inspector failed, for example, to analyse the extent of the use of the roof in the past with or without decking, et cetera, and the likely level of use of the roof with the structures the subject of the enforcement notice in situ.

(3) If the Inspector did conduct the necessary comparative exercise, he compared the present position of the use of the roof with the structure as enforced against with the wrong fall back position. He considered the position "as it has been in the past".

In the past, there was some decking, but it had become so rotten that it had had to be removed. Therefore, it was submitted on behalf of the claimant that the proper comparison was with the likely level of use of the roof with no decking and no screen fencing.

(4) The fall back position, that is to say the ability to use the roof of number 13 as a roof terrace without the structures the subject of the enforcement notice, was a wholly new point. If the Inspector was to conclude that there was likely to be no material difference between the use of the roof with the structures and the use in the past, then he should have given the Council a proper opportunity to comment on that issue. In the circumstances, the Council have not had a fair crack of the whip.

I accept Mr Brown's submissions on behalf of the Secretary of State that there is no force in any of these criticisms of the Inspector's decision for the following reasons:

Ground 1

This was not a case where an appellant was contending that if refused planning permission to carry out development X, he would exercise his legal right to carry out development Y. There was no need for the Inspector to speculate as to whether or not the roof would or would not be used as a roof terrace in the future if the structures the subject of the enforcement notice were removed. There was ample evidence of the use of the roof as a roof terrace for very many years, since at least 1984.

The Inspector had to consider the combined effect of the three affidavits submitted on behalf of Mr Langdon. The combined effect of the statements of Messrs Lewis, Croft and Langdon was that the roof had been so used when the decking was in reasonably good order, when it had become rotten and after it had become so rotten that it had been removed by Mr Croft.

In paragraph 1 of the decision letter, the Inspector accepted the evidence in Mr Croft's statement that the roof decking had been removed some years before Mr Croft embarked upon the complete renovation of the house in May 1999. It is not surprising that the Inspector accepted the material set out in Mr Croft's statement, since the Council did not dispute the material in the statements in so far as it related to the use of the roof, as opposed to the dates when various structures had or had not been erected and/or removed.

So far as the latter is concerned, the Inspector concluded that the roof decking installed by Mr Croft in 1999 replaced decking which had been removed some years earlier. Mr Croft himself, who said that he had removed the rotten decking in 1993, had met with the Langdons on the roof "on numerous occasions" since 1992, i.e. after he had removed the rotten decking.

I would have accepted that the Council's criticism of the decision letter would have had some force if the Inspector had merely relied upon the fact that the use of the roof would be lawful by virtue of section 55(2)(d) of the Act.

He did not rely upon such a theoretical legal possibility. He plainly relied, as he was entitled to do, upon the statements to which he had referred in paragraph 1 of his decision letter, which demonstrated that the flat roof of this dwelling house had been used as sitting out space and for sunbathing for many years.

It was this material which led him to the conclusion:

The inspector was not concerned with the use of flat roofs in general, but with the use of this particular roof.

In reaching his conclusions about the likely use of this roof with or without the development the subject of the enforcement notice, he would have had the assistance of his site visit. He visited the site on 17th February 2003 and, as he observed in paragraph 5 of the decision letter, the flat roof area is bounded on three sides by a pronounced parapet wall, leaving only one side open. There are some roofs which might be used by only the most foolhardy, but plainly he felt that this was not such a roof.

Although the enforcement notice related a number of structures, the Council relied in particular upon the fencing and the decking in support of its contention that the use of the roof as a terrace would be facilitated by the structures the subject of the notice.

I have dealt with the decking. On the evidence, the roof was being used when the decking was in reasonable condition, when it was in a rotten state and when it had been removed.

So far as the fencing is concerned, the statements did not suggest that the lack of fencing on the fourth side for at least some of the period of time since 1984, had inhibited the use of the roof as a roof terrace.

It will be remembered that, by the time Mr Croft saw the property in 1992, the decking and screening was seriously rotted. Notwithstanding this, his evidence was that he had, since 1992, met with Mr and Mrs Langdon on numerous occasions on their roof for both social and business purposes.

Ground 2

Mr Maurici submitted that the Inspector must have concluded that it was not necessary for him to consider the fall back position, comparing the extent of the use that was likely to be made of the roof with and without the structures the subject of the enforcement notice, because he had concluded that such use would not be development by virtue of section 55(2((d).

That submission is, with respect, wholly unrealistic. The Inspector was very much alive to the need to have regard to the fall back position. That, after all, was the reason why he criticised the decision of his predecessor to dismiss the appeal in 1994:

So the Inspector then proceeded to make good that omission by his predecessor.

He concluded not merely that there was no good reason why this roof could not be used as private sitting out space, with any attendant problems of loss of privacy to neighbours, but that there was no good reason why it could not be so used "as it has been in the past, whether or not the operational development the subject of the enforcement notice were in place or otherwise".

Thus, the Inspector had regard to the evidence of use in the past and his reference to "whether or not the operational development were in place or otherwise" makes it clear that he accepted that it was necessary to consider the issue raised by the Council: whether the existence of the operational development would make any material difference to the use of the roof as a sitting out area.

He was well aware of the Council's contention that the structures would facilitate such a use, but concluded that they would make no material difference to the likely extent of such use.

Mr Maurici accepts that that is a fair interpretation of the Inspector's conclusion in paragraph 4, but he submits that the Inspector simply made an assumption that there would not be any difference, and if he did not make an assumption but formed a judgement, he has not explained why he concluded that the existence of the structures, for example, the railings would make no difference to the extent to which the roof would be used as a sitting out area.

For the reasons set out above, I do not accept the submission that the Inspector made an assumption. There was ample evidence about the extent to which the roof, whether with or without decking and screening, had been used in the past over a considerable number of years, and the Inspector was entitled to rely on that evidence, together with the impression gained on his site visit, in forming his judgment.

Nor do I accept that he was obliged to carry out a detailed analysis of the precise extent to which the roof had been used in the past when the decking was in reasonably good condition, when it had become rotten and when it had been removed.

In order to be adequate reasoning must deal with the principal points in issue, but the level of detail will be very much determined by the nature and extent of the dispute. In the present case, there was no analysis, much less any detailed analysis from the Council. The Council had merely asserted, as its secondary reason for refusal, that the structures enforced against would facilitate the use of the roof as a roof terrace.

When the appellant responded to that assertion by saying in effect: "but it has been used as a roof terrace since 1984", the Council chose to make no further reply.

Thus, the Inspector was left with a bare assertion that the structures would facilitate the use of the roof as a roof terrace and a response which explained in some detail how the roof had been used for precisely that purpose when the structures were in good condition, in poor condition, and when they were not present at all.

In these circumstances, the Inspector was entitled to deal with this issue in the manner that he did in paragraph 4 of his decision letter.

More elaborate reasoning for his conclusion that, in the light of past experience, the presence of the structures would make no material difference to the extent to which the roof was used as a terrace, was not required.

Ground 3

The Council's submission appears to be based upon the premise that the comparison should have been between the likely use of the roof without any of the structures enforced against and the likely use of the roof with the structures the subject of the enforcement notice. That would not in any event be the proper comparison for the reasons explained by the Inspector in the first three sentences of paragraph 5 of the decision letter.

The seating was not fixed to the roof, and so it is difficult to see how it could be categorised as operational development. Moreover, it would be perfectly possible to place planters upon the roof in such a manner that they did not amount to operational development, and it remains an open question as to whether or not decking below parapet level would amount to permitted development.

There might have been some force in the criticism that the Inspector had merely referred to use as it had been in the past if the evidence about the use of the roof in the past had been for a brief unrepresentative period. But that was not the case. The evidence was that the roof had been used as a roof terrace since at least 1984, at times, as I have said, when the decking was in reasonable order, in poor repair and when it had been removed.

On the evidence, the roof had continued to be used as a roof terrace after the decking had been removed by Mr Croft some years prior to 1999.

Moreover, the Inspector concluded, as he was entitled to do upon the evidence about the past use of this particular roof, that it would be used, as it had been in the past, whether or not the operational development the subject of the enforcement notice were in place or otherwise.

Ground 4

In response to an enforcement notice, which alleged that the fencing and the decking in particular would facilitate the use of the roof as a roof terrace, the appellant said in essence that the roof has been used in that way since at least 1984.

It is true that this allegation was raised under the heading of ground (d). That was a misconception on Mr Langdon's part, but the contention that the roof had been used as a roof terrace for many years was plain for all to see. If the claimant was correct in its assertion that the structures had been erected within the last four years, it followed that the use of the roof predated the erection of the structures by many years.

Whilst the Council disputed the issue of when the structures had been erected, it did not dispute the proposition that the roof had been used as a roof terrace for many years. The Council simply failed to grapple with the factual material in support of the ground (d) appeal. This is not a case of the Council being surprised by a new issue. The issue was there, staring it in the face. For whatever reason, it did not respond to it beyond the bare assertion that the fencing and the decking would facilitate the use. In short, the Council did not explain why, in the light of the evidence about the past use of this roof, in the absence of sound decking and railing, the structures the subject of the enforcement notice would materially alter the extent to which the roof was used as a roof terrace.

It might be thought in any event that this is a relatively modest development and commencing High Court proceedings in respect of such a development was somewhat akin to taking a sledge hammer to crack a nut. The claimant's evidence in support of this application explains that the type of works against which enforcement action was taken in this case is not uncommon in its area.

The claimant's witness statement refers to the relatively high density of buildings within the City of Westminster and the extent to which roof terraces can have an effect on amenity and privacy.

It is said that:

That fear of a widespread precedent is misplaced. This was an appeal which turned on the Inspector's view, not merely of the particular characteristics of this particular flat roof, but most importantly upon the evidence which was provided about the past use of this particular flat roof since 1984. It was for those reasons that the Inspector concluded that it was appropriate to assess the impact of the structures solely in terms of their visual impact upon the Conservation Area, rather than in terms of facilitating the use of this particular roof.

For these reasons, this application is refused.