Bowring & Anor v Secretary of State for Communities and Local Government London & Anor

This is an appeal under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) against a decision dated 22 December 2011 of an inspector appointed by the Secretary of State for Communities and Local Government. The inspector heard an appeal against an enforcement notice. That notice was issued by the London Borough of Waltham Forest on 25 May 2011 in respect of property at 61 Lincoln Street, Leytonstone, East London E11 4PZ. The enforcement notice alleged that there had been a material change of use, that is a change of use from use as a single dwelling house to use as three self-contained flats. The notice required the cessation of use as three self-contained flats, the restoration of the property to its authorised use a single dwelling and the removal of all structures, fixtures and fittings associated with the use of the property as three self-contained flats, including any kitchen fittings. The enforcement notice was varied by the inspector to require the removal of only one of the three kitchens at the property. It is this last requirement, the removal of a kitchen, that is the subject of this appeal.

The Appellants contend that that decision is unlawful for three reasons. First, they say that the property already contained three kitchens prior to the unauthorised change of use, the kitchens were not therefore part and parcel of the material change of use and the removal of a kitchen was not necessary to remedy the breach of planning control represented by the material change of use. Secondly, they say that all that was necessary to ensure that the property was not used as three self-contained flats was to remove the locks on the entry doors to the flats and it was not necessary to go further and require removal of one of the kitchens. Thirdly, the Appellants say that the requirement that they remove the kitchen is an unlawful interference with their possessions contrary to Article 1 of the First Protocol to the European Convention on Human Rights and so is unlawful by reason of section 6 of the Human Rights Act 1998.

The Appellants purchased the property in 1998. At that time it was in a substantial state of disrepair. The Appellants have carried out various works at the property. It is accepted that the appellants had previously intended to use the property as a house in multiple occupation: the change of use from use as a single dwelling to a house in multiple occupation would be permitted development by virtue of Article 3 of, and Schedule 2 to, the Town and Country Planning (General Permitted Development) Order 1995. It seems that the Appellants had installed additional kitchens in the property and those kitchens had, in fact been installed prior to the change of use to use as self-contained flats. The evidence on this aspect of the matter is, however, not clear. In particular, it is not clear on which date the two additional kitchens were installed and whether they were installed simply to enable the house to be used a house in multiple occupation or whether the installation of the two additional kitchens was in fact a precursor to the conversion of the house into three self-contained flats. It is also not clear whether the property was actually occupied as a house in multiple occupation and, if so, for what length of time. The hearing statement that was before the inspector at the inquiry simply noted that:

“The Appellant previously developed the property as a [house in multiple occupation] by adding a number of facilities to the Property for the benefit of the tenants such as additional kitchens and bathrooms (see original plan attached as Schedule 4). The additional kitchen and bathroom on the first floor were added as part of the development of the Property with a view to its use as a [house in multiple occupation] by more than five (5) persons in reliance on the East London HMO Guidelines subscribed to by the LPA and attached as Schedule 2 which clearly state that the minimum is that one kitchen be provided per five occupants.”

At some stage, the Appellants converted the property to three self-contained flats. On 25 May 2011, the local planning authority served an enforcement notice alleging that there had been a breach of planning control in that there had been a change of use from use as a single dwelling to use as three self-contained flats without planning permission. The enforcement notice required the Appellants to do the following:

“(1)

Cease the use of the property as three self-contained flats and cease the use of each flat as a separate dwelling

“(2)

Restore the property to its authorised use as a single dwelling

“(3)

Remove all structures fixtures and fittings associated with the use of the property as three self-contained flats including any kitchen fittings, gas meters and electricity meters except as required for use of the Land as a single dwelling house

“(4)

Remove all debris resulting from any works under this notice.”

The Appellants appealed on a number of grounds. For the purposes of this appeal, the relevant ground is that in section 174(f) of the 1990 Act namely that the steps required by the notice exceed what is necessary to remedy any breach of planning control.

The inspector’s decision on this ground of appeal is set out in paragraphs 23 to 25 of his decision. He said this:

“23.

I do not consider that requirements (1) and (2) are excessive. I have found that the change of use is unacceptable and that planning permission ought not to be granted. I consider that, in relation to a Class 3 Use, this could mean that the property could revert to a single house in multiple occupation but it would still be classed as a single dwelling house rather than 3 self-contained flats if kept within the HMO restrictions on numbers of occupants.

24.

With regard to requirement (3) I accept that, as worded, it is excessive. For example there is only gas meter and one main electricity meter in the property. However, the aim of the requirement is to remove elements that enable the property to be used as three separate units. A requirement such as this is therefore in principle appropriate and necessary. I intend to use my powers to vary the wording of this requirement so that it achieves this aim and accords with the other requirements without being excessive.

25.

I accept the appellants’ contention that it is not unusual for single dwellings, or for dwellings which are shared by a number of persons, to have more than one area for food and drink preparation. I consider it reasonable and appropriate, therefore to vary the notice by requiring removal of only the first floor kitchen. This would give the opportunity for people living in the house to use the large kitchen on the ground floor and/or the smaller one, at the top of the house, on the second floor. This would also satisfy the requirement in the East London Guidance on HMO Standards, that kitchen facilities should be no more than one floor away from other accommodation. At the same time this arrangement would, in my view, also be in line with the aims of the other requirements in restoring the property to a Class 3 Use. I do not consider that this will cause any injustice.”

At paragraph 32 of his decision, the inspector said this:

“32.

On balance, I conclude that the upholding of the notice will not have a disproportionate effect on the interests of the appellants or any other affected person. I consider that any interference in Human Rights in this case is proportionate and that the objective of restoring the property to a single dwelling house in Class C3 cannot be achieved by any other means (other than upholding the varied notice) which would cause less interference to the appellants and the tenants.”

The inspector therefore directed that the enforcement notice to be varied by deleting requirement 3 and substituting instead a requirement that the locks to the entrance doors of the 3 self-contained flats be removed and that the kitchen fittings and equipment be removed from the first floor.

Section 57 of the 1990 Act provides that “planning permission is required for the carrying out of any development of land”. Development is defined in section 55 of the 1990 Act as meaning, except where the context otherwise requires:

“the carrying out of building, engineering, mining or other operations in, on, or over land or the making of any material change in the use of buildings or other land”.

A local planning authority has powers to issue an enforcement notice. The contents and effect of an enforcement notice are prescribed by section 173 of the 1990 Act which provides, so far as material, that:

“(1)

An enforcement notice shall state—

(a)

the matters which appear to the local planning authority to constitute the breach of planning control; and

(b)

the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.

(2)

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.

(3)

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.

(4)

Those purposes are—

(a)

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

(b)

remedying any injury to amenity which has been caused by the breach.

(5)

An enforcement notice may, for example, require—

(a)

the alteration or removal of any buildings or works;

(b)

the carrying out of any building or other operations;

(c)

any activity on the land not to be carried on except to the extent specified in the notice; or

(d)

the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.”

Section 174 of the 1990 Act provides that a person having an interest in the land concerned may appeal to the Secretary of State against the notice. Section 174(2) of the 1990 Act sets out the grounds upon which an appeal may be brought. The relevant ground in the present case is that in section 174(2)(f) of the 1990 Act namely on the ground:

“(f)

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;”

The first ground of challenge is this. The Appellants contend that in the present case an enforcement notice may only require steps to be taken for the purpose of remedying the breach of planning control. The breach of planning control here is the making of a material change of use from use as a single dwelling to use as three self-contained flats. The two additional kitchens in the property were installed before that material change of use was made and was intended to further a different, lawful use of the property, namely use as a house in multiple occupation. As the installation of the kitchens was not part and parcel of the making of a material change of use, but predated that change of use, an enforcement notice could not lawfully require the removal of the kitchens. Such a notice would exceed what was required to remedy the breach of planning control. At the very least, the inspector did not consider that issue and did not decide whether the installation of the kitchens was or was not part and parcel of the making of a material change of use.

The Respondent contends that an enforcement notice may lawfully require the removal of incidental operational works, such as the installation of the additional kitchens, even if those works were undertaken prior to the change of use, if removal is in fact considered necessary for the purposes of remedying the unauthorised use. In other words, before an enforcement notice can lawfully be issued requiring certain works (here the kitchens) to be removed, it is sufficient that the works in question are part and parcel of the current unauthorised use.

Considering first the statutory language, that, in my judgment, supports the Appellants’ contention. Enforcement notices may be served where the local planning authority thinks that there has been a breach of planning control. The breach of planning control is the carrying out of development without permission. In the present case, the development is, in the language of section 55 of the 1990 Act, the making of a material change in the use of the land. In this case, it is the making of a material change of use from use as a single dwelling to use as three self-contained flats. The purposes for which an enforcement notice may be served include “remedying the breach” of planning control “by discontinuing any use of the land” or “by restoring the land to its condition before the breach took place”: see section 173(4) of the 1990 Act. If the kitchens were installed for some other, lawful use before the material change of use was made, the installation of the kitchens would not have involved a breach of planning control as they would not have been installed for the making of a material change of use. Similarly, if the installation of the kitchens had been undertaken for a different, lawful use, it would not appear necessary to require that they be removed to remedy a breach of planning control which consisted of the making of a material change of use to use as three self-contained flats. Again, if the enforcement notice was intending that the land be restored to its condition before the breach, that would require restoring the land to a single dwelling albeit one with three kitchens.

Turning to the case law, there are two principal decisions that touch upon this issue. I consider first the decision in Somak Travel Ltd. v Secretary of State for the Environment and another (1987) 55 P. & C.R. 250. That case concerned a travel agency which operated from the ground floor of a property. The first and second floors were used for residential purposes. The appellant there made a material change of use of the first and second floors by converting them to use for offices. In addition, the appellant installed a spiral staircase. An enforcement notice was issued in respect of the material change of use. That notice required the discontinuance of the use of the first and second floors for office purposes. It also required the removal of the spiral staircase. The appellant contended that the enforcement notice could not require the removal of the spiral staircase as works which only affected the interior of a building did not require planning permission and the appellant could have constructed the staircase without planning permission. To that extent, the issues in Somak were different from the present case. The court, however, did consider the appropriate test for determining whether or not an enforcement notice dealing with a material change of use could also require the removal of operational works. Stuart-Smith J. said this at page 256:

“The test laid down in [Murfitt v Secretary of State for the Environment and East Cambridgeshire District Council] by Stephen Brown L.J. that the operational activity should be part and parcel of the material change of use or integral to it, is one which seems to me to be satisfied in this case. It must, of course, be a question of fact in each case, but there seems to me to be plainly material upon which the inspector could come to the conclusion, as he clearly did, that it was integral to it. It is only necessary to remind oneself of the two passages which come from the appellant’s own case, to which I have already referred. It seems to me that there could only have been two possible reasons why this spiral staircase should have been put in in the first place. The first is in order to use the residential accommodation on the first and second floors as a house or home for the owner or occupier or manager of the shop to facilitate movement between the two. One can see that that might be of some advantage. Quite clearly, that was not the position here. The alternative reason for putting it in was that which was explained in the reasons here, namely, to enable the staff in the travel agency business on the ground floor to communicate quickly with the office staff above, some form of telecommunication system being inadequate, and to void the necessity of going right outside the building, and going round the back, to obtain access to the offices above.

It seems to me that if one adopts the test, whether or not it was integral to or part and parcel of the change of use from residential to office accommodation, the test is satisfied”.

In my judgment, that supports the view that where an enforcement notice is served alleging the making of a material change of use of land, and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use. On the facts of cases such as the present, it will not be sufficient if the works are integral to or part and parcel of the present unauthorised use of land if the works had been undertaken for a different, and lawful, use and could be used for that other, lawful use even if the unauthorised use ceased.

The one case which raises a question about this approach is the decision of the Court of Appeal in Murfitt v Secretary of State for the Environment and East Cambridgeshire District Council (1980) 40 P. & C.R. 254. The facts are important although they do not appear clearly from the report of the decision. There, the appellant started an agricultural plant hire and haulage business in 1959. That would seem to have been a lawful use of the land. By the end of 1963, he had extended the area of land used for that purpose by about 15 yards and that extension had been laid with hardcore. The laying of the hardcore was, it seems, operational development and planning permission was required but none was obtained. In the late 1960s, it seems, the use of the land was changed from use for agricultural plant to use for a haulage business using heavy goods vehicles. The local authority served an enforcement notice in 1977 alleging a material change of use to use for parking heavy goods vehicles in connection with the haulage business. The notice required that use to cease and, after amendment by the inspector, further required the land to be restored in accordance with a scheme to be agreed with the local planning authority or, in default of such agreement, with the Secretary of State. It seems that the purpose of that requirement was to require the hardcore to be removed. The appellant contended that the four year time limit for taking enforcement action against operational works (the laying of the hardcore) had passed and that removal of the hardcore could not be required under an enforcement notice alleging a material change of use (where the period for issuing an enforcement notice was 10 years). The Court of Appeal rejected that submission and held that an enforcement notice alleging a material change of use could require the cessation of the use and the removal of works even though the time limit for taking enforcement activity in respect of the works as operation development had passed. Read in that way, the decision of the Court of Appeal does not address the issue that arises in this case.

Mr Banner, for the Secretary of State, points to the factual situation in that case, and to certain observations of counsel for the Secretary of State. First, on the facts, the Court of Appeal held that the enforcement notice was valid. The notice, however, was one which, so far as one can tell, dealt with a situation where the works had been undertaken prior to the material change of use to use for parking heavy goods vehicles in connection with a haulage business. Nonetheless, the notice was valid. Mr Banner submits that that means that work undertaken previously for a lawful use may be the subject of a requirement that they be removed if they are subsequently used as part and parcel of the unauthorised use. That, he submits, supports his contention that all that is necessary is that the works are in fact part and parcel of the unauthorised use – it is not necessary to establish that they were part and parcel of the making of the material change of use to that unauthorised use. He drew attention to the observations of counsel for the respondent in that case who is recorded as saying:

“On behalf of the Secretary of State, it is urged that the placing of the hardcore is simply part and parcel of the use of this land for the parking of heavy goods vehicles in connection with the haulage business. The appellant agrees that the only purpose of the hardcore on the site it to enable it to be used for the purpose of parking of heavy goods vehicles. The Secretary of State submits that it is so much an integral part of the use of the site for the parking of heavy goods vehicles that it cannot, and should not, be considered separately and that, when the enforcement notice makes the requirement for the discontinuance of the use complained of and requires the restoration of the land to its condition before the development took place, it ought to be understood to refer to the removal of the hardcore and properly includes that as a requirement”.

I see the force of Mr Banner’s submissions. Ultimately, however, in my judgment, the decision in Murfitt is only authority for the proposition that an enforcement notice alleging a material change of use may also require the removal of certain works not withstanding the fact that the shorter, four year time limit for separate enforcement against operational development has passed. The Court of Appeal accepted that, on its facts, the enforcement notice there was valid. The Court of Appeal was, essentially, rejecting the submission that if works could have been subject to enforcement notice as operational development, but if the time limit for issuing an enforcement notice had passed, it was not possible to include a requirement that the works be removed when the local planning authority subsequently issued an enforcement notice alleging that there had been a material change of use without planning permission. The Court of Appeal was not, in my judgment addressing the question of what is the test for determining whether works carried out for some other, lawful use may be the subject of a requirement that they be removed when an enforcement notice alleging a material change of use is served. On that question, the correct legal position, in my judgment, is as set out in paragraph 16 above.

In the present case, the inspector did not address the question of whether or not the installation of the kitchens was in fact undertaken for a different, lawful use or whether the works were, in reality, done as part of the making of a material change of use of the land from use as a dwelling house to use as three self-contained flats. There is insufficient evidence to indicate that there is only one answer to that question. The matter will therefore have to go back to an inspector for that inspector to consider all the facts to determine whether or not the two additional kitchens were installed for the purpose of developing the property as a house in multiple occupation or whether, in fact, they were installed as part of the process of converting the house into flats. That will require the inspector to look at all the relevant facts, including potentially the date when the kitchens were installed, the length of time if any in which they were used by people living in the house prior to the conversion to flats, any evidence of the intention underlying the installation of the kitchens and any other relevant fact.

In the light of my conclusion on the first ground, these two grounds can be dealt with shortly. The Appellants contend that the inspector could not rationally conclude that the removal of one of the kitchens was necessary in order to remedy the breach of planning control. All that was necessary was to prevent the use of the property as three self-contained flats. That, they say, could be achieved in the present case by requiring the removal of the locks on the entry doors to the flats as that would prevent the building being used as self-contained flats. In my judgment, (and assuming for these purposes, that the additional kitchens were installed as part of the material change of use, which is the matter that the inspector will now have to decide) the question of what was necessary to prevent the use of the building as self-contained flats would depend on the facts of each particular case. They would include, but would not necessarily be limited to, the extent to which the building has been the subject of physical changes, the extent to which the alleged separate dwellings can be regarded as separate in the sense of being self-contained and independent of other parts of the property and any other relevant fact: see Ealing Corporation v Ryan [1965] Q.B. 486 at 494C-G. It would not of itself be irrational to take the view that more was required to ensure the property was not used as three self-contained flats than removing the locks. The fact that an inspector might consider that removal of one kitchen was the minimum that was required would not of itself be irrational.

Similarly, I do not accept that it would necessarily be irrational to require the removal of one additional kitchen rather than two. The argument was that if it was necessary to remove a kitchen to prevent use as a self-contained flat, then the inspector should have required the removal of both additional kitchens. It was said that he could not rationally leave two kitchens at the property as the presence of the second kitchen might result in the use of the property as two self-contained flats. Removing only one of the additional kitchens would not ensure that the property would be used a single dwelling house. In my judgment, it would be open to the inspector to form the view that he would impose the least excessive or onerous requirements to prevent the use of the property as three self-contained flats. He could rationally decide to require the removal of one kitchen, whilst leaving two kitchens still in place, to recognise that is not unusual for single dwellings, or dwellings shared by a number of persons, to have more than one kitchen.

The third ground of challenge was that the inspector’s decision to require the removal of one additional kitchen involved a disproportionate interference with the right to peaceful enjoyment of their possessions contrary to Article 1 of the First Protocol to the European Convention on Human Rights. That Article provides that,

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provide for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

In brief, the Appellants contend that the property is their possession, that the decision of the inspector amounts to a control on the property and, whilst it may be seeking to achieve a legitimate aim in the general interest (proper planning control to protect the environment and the interests of others), the decision is disproportionate. First, in most cases, a decision relating to planning matters, such as granting or refusing permission, or taking enforcement action, will usually involve a balancing of the interests of those wanting to develop property against the broader community interest. The process of striking that balance, and reaching a lawful decision, can be expected to satisfy the requirement that the restriction on the use of property is proportionate: see Lough and others v First Secretary of State [2004] 1 W.L.R. 2557 especially at paragraphs 49 and 50.

Secondly, if works were undertaken as part of the making of a material change of use of the property without permission, then, again, the decision on what was required to remedy that breach would involve consideration of what was appropriate to remedy the breach. A lawful decision requiring that the works be removed could again be expected to satisfy the requirement that the restriction on the use of property is proportionate. Thus, assuming that the additional kitchens here were installed as part of the making of a material change of use to use for three self-contained flats (and that is a matter which the inspector will now need to determine), then a decision that removal of one the kitchens was necessary to remedy that breach be could be expected, in my judgment, to satisfy the requirement that any restriction be proportionate. I note the argument that the planning regime does not normally concern itself with works affecting the interior of the building and that the owners could lawfully install a kitchen the very next day. But on the assumption that the installation of the kitchens were part and parcel of an unauthorised material change of use, the question is what is proportionate to remedy that breach by discontinuing the use or restoring the land to its previous condition. In my judgment, a decision that the minimum necessary to remedy the breach of planning control would be likely to be proportionate. I recognise that difficult questions might arise if, contrary to my view, the position was that works (here the additional kitchen) could be required to be removed even though they were undertaken for a lawful use prior to the change of use. On the view that I have formed of the law, that question does not arise for decision.

The appeal will be allowed and the matter remitted to the inspector to determine whether or not the relevant works in the present case, namely the installation of the two additional kitchens, were integral to, and part and parcel of, the material change of use.