Barker, R (on the application of) v Brighton and Hove City Council & Ors

The Claimant applies for judicial review of the Defendant’s decision not to proceed with enforcement action in respect of a newly-built house at 14A Upper Hollingdean Road, Brighton Sussex (“the dwelling house”).

On 14^th June 2007, the Defendant granted the developer planning permission to construct a residential development at a site previously used for industrial purposes, to the rear of 14 Upper Hollingdean Road, Brighton. The permission comprising a change of use from B1/B2 industrial/business to C3 residential conversion of main building into two town houses; erection of a single dwelling house in the north-east corner of the site and demolition of outbuildings. The current claim only concerns the single dwelling house in the north-east corner of the site.

The Claimant and the two Interested Parties live in Hollingbury Road, Brighton and they are affected by the development as it backs on to their rear gardens.

The claim was filed on 14^th June 2012. Permission was initially refused on the papers, but then granted at an oral renewal hearing on 5^th December 2012.

On 20^th March 2012, the Defendant’s planning officers decided that “it would not be expedient to take enforcement action against this unauthorised development”. The reasons they gave were, in summary:

The Defendant has now conceded that the decision of 20^th March 2012 was legally flawed. It did so solely on the basis that its officers failed to consider whether enforcement action could or should have been taken to achieve the effect of condition 5 attached to the planning permission, which required the bathroom windows to be obscured. However, the Defendant contended that the four year time limit for taking enforcement action has now expired because the building operations were “substantially completed” by October 2008. The Defendant has now persuaded the owner of the dwelling to fit opaque plastic film on two ground floor bathroom windows. Therefore the issue has become academic and the court should not make any finding of unlawfulness nor grant any relief.

The Claimant submitted that the Defendant’s decision of 20^th March 2012 was unreasonable and perverse. The Defendant’s planning officers failed to have proper regard to the earlier conclusions of the planning officers that the development was unacceptable and that enforcement proceedings ought to be taken. Two out of the three officers who took the decision on 20^th March 2012 had not even visited the site. The third, Ms Kate Brocklebank, had inspected the site and prepared a report in 2010, but not visited since then. The condition of the ‘green roof’ had deteriorated badly since then and had become an eyesore. The suggestion that the neighbours should double the height of the boundary wall was unreasonable. There was no consultation with the affected neighbours before the decision was taken and the Defendant did not even inform them of the decision that had been taken, despite the fact that, in the Defendant’s view, the time limit for taking enforcement action was close to expiry.

Although in December 2013, the developer put opaque film on the two bathroom windows on the ground floor of the dwelling house, the upstairs bathroom window still has clear glass, as do the other windows. The Claimant and Interested Parties (including their children) are often able to see the occupants undressed, which they find unsightly and inappropriate.

The Defendant’s response was that it was entitled to consider the question of enforcement proceedings afresh, and it had a broad statutory discretion which it had exercised lawfully, save in relation to the windows, which were the only issue of any real significance. There was a further site visit, which Mr McCormack attended, before the decision of 20^th March 2012 was taken. It was not under a legal obligation to consult the affected neighbours, nor to notify them of its decision.

Turning to my conclusions, under the statutory scheme, a local planning authority has power to issue an enforcement notice under section 172(1) Town and Country Planning Act 1990 (“TCPA 1990”) where it appears to them (a) there has been a breach of planning control; and (b) that it is expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations.

A “breach of planning control” is defined in section 171A(1) TCPA 1990 as (a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted.

A local planning authority has power to issue a breach of conditions notice under section 187A TCPA 1990 where conditions attached to planning permission have not been complied with.

After considering the history in this matter, I have concluded that the Defendant’s decision was perverse, in all the circumstances, and that the planning officers concerned failed to have proper regard to relevant factors set out in its earlier assessments, which I set out below.

The Council’s officers were of the opinion that planning permission was granted with the intention of achieving the objective set out in the planning officer’s report:

“The proposed new building has been designed to minimise harm to neighbouring amenity as much as possible. The height of the building has been determined by the height of the boundary screening on the western boundary between this site and dwellings in Hollingbury Road. The plans submitted indicate that western part of the proposed building will not project above the height of the boundary screening and the building will not cut into the 45 degree line so there will be no adverse impact on properties in Hollingbury Road by way of bulk or overshadowing. Taking account of the drop in ground levels and distance of 10m between the west elevation of the building and the rear elevation of the nearest property in Hollingbury Road it is not considered that there will be any significant loss of light to these properties. Furthermore it is not considered that there will be any harm in this respect to other neighbouring properties.”

The majority of the development was completed in 2008. Following complaints by neighbours, the Defendant carried out a series of site inspections and concluded that breaches of planning control had occurred. In particular, the dwelling-house was higher than had been intended, partly because of some discrepancies in the plans. Mr Phil Rowe, Planning Investigation Officer, sent a letter dated 25^th September 2008 to the developer identifying breaches of conditions 14 and 16, by reason of failure to install photovoltaic roof tiles. He also found that the approved plans did not accurately show the ground levels and that there was non-compliance with approved plans. He said:

“...the relationship from neighbouring gardens to the west elevation of the new build and specifically the Velux windows and green roof is unacceptable.”

“As a result of the oversight with respect to the level of the adjoining properties rear gardens there is far greater inter-visibility to the Velux windows in the west elevation.”

Mr Matt Gest, Planning Investigations and Enforcement Manager sent an email dated 9^th March 2009 to the developer listing the following findings (among others) following a site visit:

The Defendant decided to take enforcement proceedings requiring the dwelling house to be demolished. As a preliminary step, it served a notice pursuant to section 16, Local Government (Miscellaneous Provisions) Act 1976, under cover of a letter dated 10^th September 2009 which stated:

“The … dwelling erected at the north east corner of the site has not been built in accordance with approved planning application BH2006/03532; the development therefore does not benefit from planning permission…

…..You are at liberty to submit an application to obtain a planning decision should you wish, but please note that the submission of a planning application will not stop enforcement action from being taken.

The Local Planning Authority considers it expedient to instigate enforcement proceedings to seek the removal of the unauthorised dwelling…..”

The developer’s consultants sent a lengthy letter to the Defendant in opposition to enforcement action, but on 20^th October 2009, Ms Evelyn Baxter, Senior Planning Investigation Officer, sent an email confirming that the Defendant considered it expedient to serve an enforcement notice requiring the demolition of the development.

Ms Evelyn Baxter prepared a draft enforcement notice dated 17^th November 2009. The reasons given for the enforcement notice were, inter alia, that the dwelling house should have been almost completely screened but because of the unauthorised increase in height, there was material harm by way of overlooking, over- shadowing and loss of privacy on neighbouring properties. Planning permission had originally been granted “on balance”, on the basis that the dwelling house would not project above the boundary screening. The development in its current form would most probably have tipped the balance against the grant of permission.

The developer applied for retrospective planning permission. The first application was withdrawn in order to address outstanding issues identified by planning officers. The second application was refused by the Defendant on 29^th October 2010 on the grounds that:

The officer’s report, dated 20^th October 2010, recommending refusal, described how the original scheme sought to limit the impact on neighbouring dwellings, but the increased height, poor design and poor finish of the dwelling house had resulted in a poor outlook for the neighbours, in particular the exceptionally poor standard of the “green roof” and the siting of the roof lights. Overlooking of neighbours would occur. This was not of itself sufficiently severe to justify refusal of planning permission, but it would require a condition to obscure glaze the bathroom windows.

The developer appealed, and the appeal was determined by an Inspector, Ms Sheila Holden, appointed by the Secretary of State for Communities and Local Government. She conducted a site visit on 20^th April 2011. The appeal was dismissed. In her appeal decision, dated 4^th August 2011, the Inspector found that (1) the development deviated significantly from the plans approved when planning permission was initially granted; and (2) the design shown on the appeal proposal was fundamentally flawed.

The Inspector’s costs decision, dated 4^th August 2011, exposed the unsatisfactory path the proceedings had taken. She said, at paragraphs 5 and 6:

“5.

A number of the issues that the Council was attempting to address related to a failure to comply with conditions on the original permission. Some of these … could have been addressed through submission of revised plans, additional reports or a fresh planning application…However they could also have been resolved more appropriately through other action by the Council….”

“6.

…. I acknowledge that the Council has sought to regularise the situation through a fresh planning application, rather than through pursuing enforcement action. However, this course of action did not produce an outcome that was satisfactory for either party …”

The Claimant expressed the view, with which I have some sympathy, that the neighbours expected the Defendant to grant the application for retrospective planning permission as a means of overcoming the practical problems caused by the development, for example, by imposing conditions on the further grant of permission which would require the developer to take steps to minimise the overlooking and loss of privacy, perhaps by re-designing the windows, or inserting obscured glass, and by removal of the failed ‘green roof’.

Be that as it may, I would have expected the Inspector’s observations to have alerted the Defendant to its inadequate handling of the existing problems, and to take swift action to remedy them. However, there is no evidence before me of any steps taken after the Inspector’s decision in August 2011 and the challenged decision in March 2012. After that long delay, the Defendant decided to take no further action, which simply made matters worse. The effect of its decision in March 2012 was to leave the affected neighbours with no redress for a significant breach of planning control.

In contrast to the detailed assessments made earlier, the decision of 20^th March 2012 was perfunctory. There was no explanation as to why the officers were now departing from the earlier assessments made by Mr Phil Rowe and Ms Evelyn Baxter, to the effect that the development had an unacceptable impact on the amenity and privacy of the neighbouring properties and should be demolished. Nor was there any reference to the key passage in the officer’s report at the time the permission was originally granted, explaining the crucial importance of the positioning of the dwelling house below the boundary screening. The importance of obscuring the Velux windows, emphasised in the officer’s report recommending refusal of the application for retrospective planning permission was ignored, even though Ms Kate Brocklebank was the planning officer at that time, and was also party to the decision on 20^th March 2012.

I read and heard detailed submissions from the Claimant, Ms Cardus and Mr Taylor on the problems caused to them and their families by this development, and I am satisfied that they have genuine, legitimate ongoing concerns. The proposal that they should double the height of the boundary wall was unacceptable to them because it would add to the sense of enclosure in their gardens; it would be expensive; and it would not block the view of the top roof. There was a site visit prior to the decision, but the neighbours were unaware of it. The officers were not legally obliged to consult the neighbours affected, but their failure to do so contributed to their failure to take into account all the relevant factors, such as the deterioration in the state of the ‘green roof’ and the impact which the overlooking has had upon the neighbours. Moreover if the officers had consulted the neighbours about the proposal to increase the height of the wall, they would have appreciated why it was not likely to provide a satisfactory solution.

For these reasons, I conclude that the decision of 20^th March 2012 was legally flawed. The decision was perverse in the light of the previous history, including the Defendant’s own previous assessments, which were not properly considered.

The failure to notify the Claimant and Interested Parties of the decision not to take enforcement action was not unlawful, but it prejudiced their position because it delayed their legal challenge to the decision, which in turn meant that the four year time limit for taking enforcement action in respect of the unauthorised building operations had expired by the time the Defendant eventually conceded that its decision had been wrong. A pre-action letter was sent by the Claimant on 16^th May 2012. The Defendant rejected the challenge in its entirety. The claim was issued on 14^th June 2012, and the Defendant filed an Acknowledgment of Service resisting the claim in its entirety. Mrs Justice Cox refused permission on the paper because of the “careful reasons” given by the Defendant for its decision. The Claimant had to renew his application for permission orally and it was granted on 5^th December 2012. The Defendant’s concession not made until 12^th March 2013.

Unauthorised development

In his initial grounds, the Claimant contended that the Defendant’s planning officers erred in law in stating that the conditions could not be enforced because the structure as a whole was not authorised.

The Defendant submitted in its ‘Detailed Grounds of Resistance’ response that the principle in Whitley & Sons v Secretary of State for Wales (1992) 64 P & CR 296 applied. The planning permission which was granted was never implemented and so the whole development was unauthorised. In particular:

By the date of the hearing the Claimant accepted that the Whitley principle applied. However, as the Claimant was a litigant in person, I sought further submissions and evidence from the Council to clarify this issue, particularly in the light of the fact that the permission had been implemented by the construction of the two town houses, the demolition, and the change of use, about which no complaint was made.

In his further submissions, Mr Williams submitted that the development was unauthorised because the developer had failed to comply with two pre-conditions: condition 9 (prior approval of samples of materials to be used in construction) and condition 12 (prior approval of the landscaping scheme). The developer had submitted, on 20^th October 2008, samples of some (not all) of the materials and a landscape scheme, but these had never been approved by the Defendant. As the conditions stated that no development should take place until these matters were approved by the Defendant, the Whitley principle applied (see Greyfort Properties Limited v Secretary of State for Communities and Local Government [2011] EWCA Civ 908; R (Hart Aggregates Ltd) v Hartlepool [2005] EWHC 840).

Mr Williams did not pursue this argument in relation to condition 17 (prior approval of desktop study, contamination report and waste management plan) because his further investigations revealed that informal approval had been given to the developer by the Defendant. In his further submissions, Mr Williams did not pursue the earlier pleaded case that the development was unauthorised because the dwelling house was not built in accordance with the plans and specifications in the grant of planning permission.

In the light of these submissions, I accept that the Defendant was entitled to conclude that the dwelling house was unauthorised. For the avoidance of doubt, this also means that the totality of the development to the rear of 14 Upper Hollingdean Road, including the conversion of the disused office building into two dwelling houses, was unauthorised.

Section 171B sets out time limits for taking enforcement action. The material time limits in this case are:

Both enforcement notices and breach of conditions notices are enforcement action for the purposes of the Act (section 171A(2)).

By section 191(3) TCPA 1990, a failure to comply with any condition or limitation attached to planning permission becomes lawful if the time for taking enforcement action has expired.

In his initial grounds, the Claimant accepted that the building operations were “substantially completed” by October 2008, for the purposes of the four year time period under section 171B(1). So too did the Interested Parties. However, in April 2013, Ms Stella Cardus, Interested Party, made written representations that the building operations were not substantially completed until 2010, when the north face of the building was rendered and fascias fitted. A final building certificate had not been issued by October 2008. In his skeleton argument, the Claimant adopted this argument and pursued it at the hearing.

On the evidence before me, the Defendant’s conclusion that the building operations were “substantially completed” by October 2008 cannot be characterised as unlawful. In the letter of 25^th September 2008, Mr Phil Rowe said “the properties are nearing the point where they could be occupied” and the dwelling house was occupied at the end of 2008. By late 2008, the dwelling was substantially completed, with roof, walls, windows, doors and internal fittings in place. I have seen photographs of the unfinished north wall, which I accept was not completed until 2010. This meant that the dwelling house was not completed until 2010. However, it was substantially completed by late 2008.

The Claimant’s alternative submission was that it remained open to the Defendant to commence enforcement action for unlawful change of use, as the time limit of ten years had not yet expired. It was common ground that ten years was the appropriate time limit, as the four year limit in respect of a change of use of a building to a dwelling house only applied in respect of an existing building, not a new one. It was not in dispute that there had been a change of use from B1/B2 to C3 (the site had previously been an industrial site, occupied by a factory). As the Defendant has concluded that the dwelling house does not have valid planning permission, it ought to have considered whether or not to take enforcement action on the grounds of unlawful change of use. I accept the force of the Defendant’s submission that, even if such enforcement action was taken, it would be unlikely to result in an order requiring the demolition of the dwelling. But in my judgment, this is a matter for the Defendant to decide when it re-considers this case.

In conclusion, the Claimant’s application for judicial review is granted. I quash the Defendant’s decision of 20^th March 2012 as unlawful and order the Defendant to re-consider the outstanding issues in respect of the development of the land to the rear of 14 Upper Hollingdean Road, Brighton, in the light of this judgment.