Hussain v Secretary of State for Communities and Local Government

MR JUSTICE KERR: The parties in this case are in a disagreement. The claimant, Mr Hussain, says that a decision refusing to bestow a certificate of lawfulness on his residential development is wrong in law and should be quashed. The first defendant, the Secretary of State, says the property to which the challenged decision relates is unlawfully standing and should be demolished on pain of criminal proceedings.

The second defendant, Leeds City Council, would be the party to bring such criminal proceedings but has taken no part in these proceedings.

The property in question is at 5 Bentley Parade, Meanwood, Leeds LS6. It is a residential property. What is now 5a Bentley Parade was at the start of the history in this case some garages adjacent to No 5. At some point prior to November 2000 Mr Hussain sold No 5.

According to a much later statutory declaration, he sold No 5 and 7 Bentley Parade in June 1998, although it is stated that he retained "ownership of the building" which indicates to me, although it is not very clear, that he retained some interest in Nos 5 and 7.

On 7 November 2000, the City Council issued a decision granting permission for a change of use in respect of No 5, permitting the use of outbuildings as a "granny flat". The outbuildings in question were what were then the garages. Conditions were attached. Condition No 1 required that the development permitted must be begun before the expiration of 5 years from the date of the permission. Condition No 3 required that the "granny hut" must be occupied as an extension to No 5 "and shall not form a separate dwelling unit".

On 29 January 2001 permission was obtained, on this occasion by a Mr Khan (who, I assume, was associated with Mr Hussain or was his agent). Permission was granted by Leeds City Council for a "single storey front extension to granny flat to rear" of No 5. Conditions 1 and 3 attached to the grant of that permission mirrored those that I have already mentioned from the previous year.

In August 2002, Mr Hussain had an appeal determined against a refusal to grant planning permission by the City Council, in respect of his application for further development at the same site constituting "the increase in pitch of roof to ex granny flat and form gable wall". That quote is from the subsequent appeal decision. That decision was issued on 14 August 2002. The appeal was allowed and planning permission for that development was granted, provided (among other things) the development was begun before the expiration of 5 years from the date of the appeal decision.

The reason given by the inspector who allowed the appeal was that the proposed changes would "deter youngsters climbing on and vandalising the roof, incidents of which have been reported to the police." The inspector noted in his reasons that also "there is no intention of creating additional living space."

After that it is clear that some works were done at the site in 2003, which was within the 5 year period applicable in the case of all three planning permissions that I have referred to. The nature of the works that were done in 2003 is not in dispute and may be taken from paragraph 20 of a later inspector's decision, to which I am coming shortly. The works are described at paragraph 18 of that subsequent decision:

Unfortunately, Mr Hussain then fell ill with the result that work stopped in May 2003 for a long time; indeed it was not resumed until 2011. The works then done from 2011 to April 2012 were considered by the City Council not to be in accordance with the planning permissions that had been granted.

In June 2012, Mr Hussain submitted an application for change of use and alterations of the outbuilding at the site so that it could form a separate dwelling. On 21 August 2012, that application was refused by the City Council. Indeed, on 17 September 2012 the City Council issued an enforcement notice requiring demolition of the property that was called 5a Bentley Parade. Although I do not have a copy of the enforcement notice it must be founded on what was later described in as one of the inspector's reports as "the construction of a building" ie as a separate dwelling.

On 12 June 2013, the Secretary of State, acting through an inspector, Mr Braithwaite, made a decision on two matters. The first was Mr Hussain's appeal against the refusal of planning permission that would have permitted a separate dwelling unit. That appeal was dismissed by Inspector Braithwaite. The second matter was Mr Hussain's appeal against service of the enforcement notice. That appeal also failed; the enforcement notice was upheld.

There was then a legal challenge, the details of which do not matter, leading to a consent order made on 5 November 2013. Under that consent order the decision challenged was quashed and remitted back for reconsideration. As was explained to me at the hearing today, the decision that was by consent quashed and remitted back related only to the appeal against service of the enforcement notice. There was no challenge in this court to the decision of Inspector Braithwaite upholding the refusal by the City Council of planning permission for a separate dwelling unit at the site.

The current position is,therefore, that there is an extant enforcement notice requiring demolition of 5a Bentley Parade within 3 months of 14 May 2015. There is also a refused planning permission application, which has remained unchallenged, for permission to change the use of the site in such a way as would permit a separate dwelling at No 5a.

As I have said, under the consent order the appeal against the enforcement notice was remitted back to the Secretary of State. That matter came before the Secretary of State's inspector, Inspector Ghafoor. He gave his decision on 14 May 2015 after inspecting the site.

The grounds of appeal were threefold and tracked the lettering of paragraphs (a), (b) and (c) of section 174(2) of the Town and Country Planning Act 1990. He dealt first in composite fashion with the grounds of appeal under (b) and (c) of those sub-paragraphs. Having set out the history of the planning permissions in 2000, 2001 and 2002 and the failed planning application for change of use in 2012, he proceeded to make his findings on the works that had been done.

He described them in detail. He accepted that they had commenced in 2003 pursuant to the 2001 and 2002 permissions (see paragraph 20). He went on to say at the end paragraph 20:

As to ground (a), he considered the question whether planning permission ought to be granted for the development as sought by Mr Hussain, although described as being in breach. He considered that issue by reference to his judgment of the planning merits. The main issues arising were the effect of the development on living conditions of nearby residents, the effect of the development on highway safety and whether planning conditions could be imposed to make the development acceptable in planning terms.

He considered those matters and reached a negative conclusion in relation to the third ground of the appeal. In so far as consideration of conditions was concerned, he addressed this in paragraphs 41-52 and rejected the proposition that the property could be saved by appropriate conditions. One such among those he considered was similar to what had been condition 3 in the 2000 and 2001 permissions. He found that "unreasonable and unenforceable" (see paragraph 46). At paragraphs 50 and 51 he addressed his mind to whether the existing building at 5a Bentley Parade could be adapted by adjusting its roof and other characteristics so to bring it in line in the 2002 permission. He rejected that proposition. He concluded that the third ground of appeal also must fail.

There was no challenge by Mr Hussain to that decision. On 14 July 2015 however, he made an application under section 192 of the Town and Country Planning Act 1990, for a certificate of lawfulness of proposed use or development in respect of the site. Such a certificate is often referred to in the parlance as an "LDC" which I believe stands for Lawful Development Certificate, a shorthand for such a certificate as is granted under section 192. The full words preceding that section are "Certificate of lawfulness of proposed use or development".

Section 192 provides so far as material:

That application came before the City Council on 5 October 2015. Its chief planning officer, Mr Tim Hill, refused the application for an LDC. He gave two reasons for his refusal. The first was that that the 5 year deadline for commencement of works granted on appeal in respect of the 2002 permission had expired and that "the works proposed are therefore not lawful as they do not benefit from planning permission". His second reason was:

Mr Hussain was not satisfied with that decision and appealed against it under section 195 of the 1990 Act. On such an appeal the Secretary of State must grant or refuse an LDC in accordance with the following provisions. By subsection (2):

On this appeal, the Secretary of State was personified by Inspector Simon Hand. Inspector Hand's appeal decision was made on 11 July 2016. It is his decision that is challenged by way of statutory review in this case under section 288 of the Town and Country Planning Act 1990, by leave of Dove J.

Inspector Hand dismissed the appeal. His reasons were set out in some seven paragraphs. He began by reciting in brief the history of the permissions granted in 2000 to 2002 and the history of works started in 2003, but not resumed until 2011. He went on to recite some of the procedural history. At paragraph 7 he summarised briefly the arguments for Mr Hussain, the appellant thus:

The inspector went on in paragraphs 9 and 10 to give his reasoning and conclusions. He said this:

Finally, I note that the building known as 5a Bentley Parade has, I was told, never been occupied. Mr Simons, for Mr Hussain, the claimant, submits that I am not concerned with the fact that there is an outstanding enforcement notice requiring demolition of 5a Bentley Parade. He submits in four brief propositions first, that the 2002 permission was "materially commenced" in 2003, as is clear from paragraph 20 of Inspector Ghafoor's decision.

Second, he submits that that was a commencement of development for the purposes of section 56(1) of the 1990 Act. Inspector Ghafoor could, Mr Simons points out, have found that there was no material commencement under that section, as was the factual position in Green v Secretary of State for Communities and Local Government [2013] EWHC 3980 (Admin), per Cranston J at paragraphs 22 and 30, but was not the position in this case.

Thirdly, Mr Simons said that once a development has been begun for section 56 purposes it cannot somehow be "unimplemented" through subsequent deviations in the works by reference to what is permitted. Fourthly, he submitted that having accepted that development under the 2002 permission had been commenced, it was not open either to Inspector Ghafoor in 2015 or Inspector Hand in 2016 to find that later deviations from the 2002 plans somehow undid the 2002 permission; and that Inspector Hand, at paragraph 9 of his decision, had erred in law in purporting to make a finding to that effect.

Under ground 2 of the appeal Mr Simons submitted, as a freestanding ground, that the reasoning of Inspector Hand was inadequate. It failed to deal properly and sufficiently with the principal controversial issue in the case - see per Lord Brown at paragraph 36 in South Buckinghamshire v Porter (No 2) [2004] 1 WLR 1953 – the issue being, what flowed from the finding that the 2003 works had materially commenced the 2002 permission

Mr Simons said that for those reasons the decision on appeal of Inspector Hand should be quashed and remitted back for reconsideration. He submitted that there was no adequate reasoning supplied for the rejection of Mr Hussain's argument that he had done enough to commence the development under the 2002 permission.

By contrast Mr Westmoreland-Smith, for the Secretary of State, began his submissions with what he called an overarching point of law which turned out to be the well-known proposition found in many places including paragraph 19 of the judgment of Lindblom J (as he then was) in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin): that decision letters of the kind under challenge here should be construed in a reasonable and flexible way, being addressed to parties who know what the issues are and what evidence and argument has been deployed on those issues; and that the inspector does not need to rehearse every argument relating to each matter in every paragraph.

Mr Westmoreland-Smith submitted that there is an unappealed decision of Inspector Ghafoor relating to the planning merits of the matter. The inspector had grappled with the question whether he could do something other than continue to require outright demolition of 5a Bentley Parade and for reasons that were sound and remain unchallenged had concluded that he could not.

As to the decision challenged in this case, Mr Westmoreland-Smith submitted that the inspector had not gone wrong in law; he had correctly identified the main issue, as Mr Hussain accepts, which was "[w]hether the 2002 planning permission is still capable of implementation?" (see paragraph 3). He had correctly identified at paragraph 9 of his decision, the two relevant quoted passages from the prior decision of Inspector Ghafoor, those quoted passages appearing at paragraph 6 of Inspector Hand's decision.

The inspector had, Mr Westmoreland-Smith submitted, rightly engaged in what he called "reading down" Inspector Ghafoor's decision, and that decision has not been challenged. Therefore, submitted Mr Westmoreland-Smith, if there was an error of law in the unchallenged decision of Inspector Ghafoor, that did not assist Mr Hussain who had not sought to challenge that decision; the issue was whether there was any flaw in the subsequent decision of Inspector Hand.

Mr Westmoreland-Smith submitted that Inspector Hand had come to the correct conclusion at paragraph 10 of his Decision Letter. His overall view had accorded with the view that the 2002 permission had not been implemented and that view not having been challenged, it had become water under the bridge by 2016. He also submitted that the court should not, in any event, in the exercise of its discretion grant any relief, even if there were a legal flaw in the decision under challenge, because the position has changed radically since 2002.

The 2002 permission related, he reminded me, to alterations to the pitch of the roof of the granny flat and the forming of a gable wall. It had been granted at a time when there was or could be a lawful granny flat in place. That was no longer the position. Unless 5a Bentley Parade is demolished the claimant, Mr Hussain, will be in jeopardy of criminal process even if successful in this case.

Mr Westmoreland-Smith went on to point out that there is a provision in section 180 of the 1990 Act, to the effect that if planning permission is granted an enforcement notice ceases to have effect in so far as inconsistent with that grant of permission; while there is no equivalent provision, he pointed out, in relation to the grant of an LDC. Ergo, he submitted, the extant enforcement notice subsists.

And there is no point in granting relief because the reality is that the decision on any remission must necessarily be the same. With an extent enforcement notice requiring demolition, the building as a whole is not lawfully present. Therefore, there could be no possibility that alterations to its roof or gable wall would be realistic and for that reason, submitted Mr Westmoreland-Smith, on any remission, an inspector could not possibly grant an LDC. The very presence of the being is unlawful.

At worst, he submitted, Inspector Ghafoor has already dealt with the merits of adjusting the 2002 permission in planning terms and has rejected the proposition that that was feasible in a decision not challenged. He defended the adequacy of the reasons in response to ground 2 of the appeal, submitting that the inspector had properly set them out and they do not need to be detailed and pervasive; the test of adequacy and intelligibility is comfortably met here.

In reply, Mr Simons urged me not to speculate about what might happen if his primary case were good and the court were considering whether to withhold relief in the exercise of its discretion. He invited me to take into account the possibility that the City Council, which has taken no part in these proceedings, might decide not to take any enforcement action in respect of the enforcement notice.

Those then are the factual and legal parameters in this application and I turn to my reasoning and conclusions.

The narrow question arising under ground 1 is whether it was open to the Secretary of State to be "satisfied … the… refusal is … well founded" (see section 195(3) of the 1990 Act). That requires an examination of whether it was open to Inspector Hand to decide that there was a good foundation for the decision of Mr Tim Hill, a City Council's Chief Planning Officer, against which Mr Hussain appealed.

I bear in mind that the context in which Inspector Hand had to consider that matter included, very much to the fore, the prior decision of Inspector Ghafoor, the effect of which was that there was evidently little, if any, substantive merit in the appeal. At best, it might have technical merit. The reasons why it could not have substantial merit are found in Inspector Ghafoor's lengthy decision letter and advanced by Mr Westmoreland-Smith before me; namely:

In the light of those matters, Inspector Hand could be forgiven for entertaining some scepticism about the substantive merits of the appeal, as distinct from possible technical merit. In my judgment, Inspector Hand was right to focus on the linguistic difficulties thrown up by Inspector Ghafoor's decision (see paragraphs 6 and 9 of Inspector Hand's decision). It seems to me clear that what Inspector Ghafoor was in substance deciding was that what was commenced in 2003 were works that subsequently did not match the plans or the permissions.

I accept that Inspector Ghafoor did not expressly say that there was no commencement under section 56. I agree with Mr Simons that it is possible to commence a development for the purpose of section 56 and thereby meet a deadline forming a condition of the permission, and then later to deviate from the permitted works in a manner that later becomes an enforcement issue without retrospectively altering the fact that the commencement of the development had occurred for section 56 purposes.

I am prepared to assume in Mr Hussain's favour that Inspector Ghafoor's use of the phrase at paragraph 20 "material commencement", indicates that he did not appreciate the body of law to the effect just mentioned, to which Mr Simons drew my attention, since the word "material", indicates that he regarded what had been done in 2003 as works done pursuant to the permissions granted in 2000, 2001 and 2002 or some of them.

The next decision was that of Mr Tim Hill, the City Council's Chief Planning Officer. He based his decision on two grounds: first, that the 5 year deadline had passed and second, that the proposed works would contravene the enforcement notice.

Turning to the appellate decision challenged in this case, I remind myself that the issue is whether it was open to Inspector Hand to decide that there was a good foundation for Mr Tim Hill's decision. The following points seem to me of considerable relevance.

First, Mr Hussain accepts that Inspector Hand addressed the correct issue which was whether the 2002 planning permission was still capable of implementation.

Second, Inspector Hand was correct to say that the appeal turned on a linguistic point thrown up by Inspector Ghafoor's wording. That was, it seems to me, probably because it was obvious to everybody that the more substantial points obviously lacked merit, for reasons I have already given.

Third, I am prepared to assume in Mr Hussain's favour that Inspector Hand did adopt the error of Inspector Ghafoor. That error was, to recap, treating the development retrospectively as not having been commenced by reference to a post-commencement deviation from the terms of the planning permission.

Fourth, Inspector Hand correctly pointed out the contradiction between the two passages he quoted from the earlier decision, in paragraph 6 of his decision. He must therefore have been alive to the difficulty caused by the use by Inspector Ghafoor of the verb "implemented" as well as the adjective "material, preceding the noun "commencement". The difficulty which the verb "implement" is that it elides two issues: firstly, whether a development has commenced for section 56 purposes; and secondly, whether works subsequently done were or were not in accordance with what was permitted.

Inspector Hand's inclination was to interpret the decision of Inspector Ghafoor in a manner which arguably gave no proper meaning to the word "material". He treated Inspector Ghafoor as having decided that what was done in 2003 was not a section 56 commencement. Otherwise his conclusion that the 5 year period had expired does not make sense.

Mr Hill had also commented that the 5 year period had expired. He did not accept that time had stopped running in 2003, as Mr Hussain now submits it had. In my judgment, it may well be that Inspector Hand was wrong to uphold the proposition that the 5 year period had expired as a basis for deciding that Mr Hill's decision was "well founded". Such a beneficent reading of Inspector Ghafoor’s words "material commencement" may go beyond what is permissible even applying a non-technical interpretation of his decision letter.

That is the high point of the technical argument of Mr Hussain in this application. If there were no other basis for finding Mr Hill's decision well founded, I might well have been prepared to grant relief. But I am only prepared to do so if that error was material.

The difficulty for Mr Hussain lies in Mr Hill's second ground:

Without more, that is plainly a sound basis for a City Council to have refused the LDC. If I were to grant relief, it is undeniable that an inspector considering the matter again should find that to be a sound and indeed unanswerable basis for refusing the LDC. Indeed, it is not, in my judgment, necessary to resort to the court's exercise of the discretion to withhold relief to dismiss this application. If one returns to Inspector Hand's decision, we see that at paragraph 10 in the first sentence he referred to Inspector Ghafoor's clear and unambiguous conclusion that the 2002 permission had not been "implemented" and that that decision had not been challenged.

Aside from repetition of the unfortunate use of the verb "implement", that passage must refer to the substantial absence of conformity between what was built and what was permitted. It was that finding of Inspector Ghafoor that was not challenged and still stands. Mr Hill took the matter one stage further by referring to the enforcement notice in his second ground, as I have just quoted. That was plainly a good basis for refusal of the LDC and was in turn linked back to Inspector Ghafoor's clear and unambiguous conclusion.

It follows that notwithstanding the imperfections in the language and reasoning of the two inspectors and of Mr Hill on the time limit point, the material before Inspector Hand amply equipped him to find that Mr Hill's decision was well founded because the 2002 planning permission was not capable of implementation for the second reason Mr Hill gave, the simple reason that it would be unlawful for that to happen. That disposes of ground 1 of the application.

The second ground impugns the reasons given, and I was referred in the usual way to the well-known words of Lord Brown at paragraph 36 in South Buckinghamshire DC v Porter (No 2). Given that the issue to which the reasons had to be directed is agreed to have been whether the 2002 planning permission was still capable of implementation, the question is whether that issue was adequately addressed in paragraphs 9 and 10 of Inspector Hand's decision letter.

In my view, subject to the time point being a bad one for reasons I have already mentioned, the reasons were adequate. They enabled Mr Hussain to understand why he had lost the appeal. He was told that he had lost because the building he had built was completely different from what he was permitted to build. The application must therefore be dismissed.

If I were wrong in my primary conclusion that the decision of Inspector Hand was not flawed by error of law or inadequately reasoned, I would in any event refuse relief in the exercise of discretion, applying the Simplex test, without hesitation. That test is that the court can refuse relief if satisfied that the outcome of the decision would be highly likely to be same even if the error made had not been made.

If the matter were remitted back I would be encouraging the claimant in a course of unlawful conduct in breach of the criminal law. A remission back has only any purpose if the enforcement notice is not complied with. It seems to me inconceivable that any inspector, on a remission back, would do anything that would encourage the claimant in a course of conduct in breach of the criminal law.

I reject Mr Simons' suggestion, eloquently though it was presented to me, that I should not "speculate" about what may happen next and should take account of the possibility that the City Council will not take enforcement action. Other things being equal, I would expect it to do so. The presence of 5a Bentley Parade is unlawful. It should have been knocked down by now. It has not been saved by appealing to the planning merits. Inspector Ghafoor has already rejected that suggestion and his decision was not challenged.

For those reasons the application is dismissed.

MR WESTMORELAND-SMITH: I am grateful my Lord. In the circumstances I do have an application for costs. Has your Lordship seen the costs schedule it was forwarded to the court?

MR JUSTICE KERR: I have.

MR WESTMORELAND-SMITH: It is in the total amount of £7,774.70 and I believe it is agreed in quantum and principle.

MR JUSTICE KERR: Then I will, with gratitude to the parties for saving me more work, summarily assess costs in that amount.

MR WESTMORELAND-SMITH: I am grateful.

MR SIMONS: My Lord there is an application to appeal. Very shortly, your Lordship accepted that the timing point, your Lordship said may have been a bad one, or may have been expressed incorrectly but your Lordship said you would only be prepared to quash or to grant relief on that basis your Lordship said if the error was material. The application for permission to appeal is there is a real prospect that the Court of Appeal would find that not only was there a material error, it was the central error in the inspector's decision. The central issue was the only issue identified under paragraph 3. It was the key issue dealt with at paragraph 9 which is where the thrust of the reasoning comes. So the central basis for the 2016 decision was predicated on a matter, an analysis your Lordship has accepted may have, at least they have got it wrong, which means there is at least a prospect that the Court of Appeal will take a different view of the role of that error, if it was an error, as we obviously say it is, taken in the overall analysis then on ground 2. Your Lordship found that the reasoning was adequate. However, on the timing issue, which was what this appeal was about if one reads paragraph 3, 9 and 10 particularly, the reasoning was, it would seem at least your Lordship accepted partially wrong or subject to question so there has to be at least, in our submission, a prospect that the Court of Appeal takes a different view on that too, that there were adequate reasons given in respect of the timing point. Those are my submissions. Of course we also have to submit, as I do, that there is at the very least a real prospect the Court of Appeal would take a different view on the exercise discretion. Or it does not take us anywhere. That is my submission.

MR WESTMORELAND-SMITH: My Lord, no prospects in particular on the discretion point. The Court of Appeal are not going to take a different view for the reasons you set out in relation to discretion. It would be unlawful to implement this permission.

MR JUSTICE KERR: What about the other two prior points?

MR WESTMORELAND-SMITH: The two prior points do not ultimately assist because there is no prospect of getting through the discretion hurdle on this particular case. But on the two prior points, I say for the reasons you have set out in your judgment there is no prospect.

MR JUSTICE KERR: It seems to me that it is established public law that a decision maker can make a valid decision founded on a mix of good and bad grounds; provided the bad grounds do not predominate to the point where the decision ought to be overturned. For that reason it is not every immaterial error that justifies the early setting aside of a public law decision. I have decided in this case that such error as there was or may have been was not material. I do not at the moment see any real prospect of the Court of Appeal taking a different view on that given the absence of substantial merit in the case, nor in the proposition that the reasoning was inadequate. It seems to me that one must put aside any reasoning supporting what I might call the bad part, or possibly bad part, of the decision impugned. The substance of the case was always about the illegality of the presence of 5a Bentley Parade and it seems to me that that is the foundation for the inspector's decision; and I do not see there is a reasonable prospect of success and therefore refuse permission to appeal.

As for the discretion point, it seems to me that the continuing unlawful presence of 5a Bentley Parade would itself be fatal to real prospects of success on appeal as regards the exercise of the court's discretion. On that additional ground I also refuse permission to appeal.

MR WESTMORELAND-SMITH: I am grateful.

MR JUSTICE KERR: Would you be kind enough to get a draft order e-mailed to the Associate and if you would copy it to my clerk?

MR WESTMORELAND-SMITH: Of course.

MR JUSTICE KERR: Are there any other matters? Thank you very much.