OLGUN KULAH v SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT

This is an appeal under section 289 of the Town and Country Planning Act 1990 (“TCPA 1990”) against the decision of an Inspector, made on behalf of the First Respondent (“the Secretary of State”), on 18 February 2021, dismissing the Appellant’s appeal against an enforcement notice issued by the Second Respondent (“the Council”) in respect of a side extension at his home at 18, Rosslyn Avenue, Chingford, London E4 6DX (“No. 18”).

The Appellant’s Notice was filed and issued for service in time, on 18 March 2021. An unsealed copy was served on the Secretary of State at that stage because it is the Court’s practice, in appeals under section 289 TCPA 1990, not to seal the Appellant’s Notice until permission to appeal has been given. Permission to appeal was granted on the papers by HH Judge Jarman QC, sitting as a Deputy High Court Judge, on 22 April 2021. By an order dated 5 August 2021, Martyn Cowlin, Administrative Court Lawyer, gave directions for service of a sealed copy of the Appellant’s Notice, and it was duly served on the Secretary of State. Therefore, I am satisfied that there was no procedural irregularity in the issue and service of the Appellant’s Notice.

The planning history is extensive, and a summary will suffice for the purposes of this appeal.

No. 18 was built as a bungalow. It has a projecting bay window at the front, with its own roof. A garage was added in 1948 with the approval of the Council.

A single storey rear extension was approved in 1976.

On 29 December 2014, an application for a Lawful Development Certificate (“LDC”) was approved by the Council in relation to a proposed single storey side and rear extension. Works commenced, and in March 2015 the Council stated that the construction required planning permission as it was not permitted development.

In October 2017, the Council granted planning permission for the retention of the single storey rear extension.

A dormer roof extension was constructed at the rear of No. 18 in 2015 without planning permission. The Council found it was not permitted development. In July 2020, the Council decided not to take enforcement proceedings in respect of the dormer roof extension.

The development which is the subject of this appeal is the single storey side extension erected in 2015, adjacent to the boundary with the bungalow at 16, Rosslyn Avenue.

In 2017 and 2019 applications were made for Certificates of Lawful Use and Development in respect of the side extension. Although neither application was successful (for reasons which are not material for present purposes), in each case the Council accepted that the eaves height of the side extension was less than that of the roof of the existing property.

On 5 April 2019 the Council issued an Enforcement Notice which alleged a breach of planning control, namely, the erection of a single storey side extension without planning permission. The Notice required removal of the rear section of the single storey side extension, as marked on the plan attached to the Notice.

The Appellant appealed the Notice on the grounds set out in section 174(a), (c) and (f) of the TCPA 1990.

The appeal was dealt with by way of written representations. The Inspector made an accompanied site visit on 3 December 2020 accompanied by Mr Mike Harry, the Appellant’s agent and Ms Ritu Kalia, a representative from the Council’s planning enforcement department.

In contrast to the Council’s position in the previous LDC applications, one of the arguments advanced by the Council was that the height of the eaves of the appeal extension exceeded the height of the eaves of the existing dwellinghouse, contrary to the limitation at A.1(d) of Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 that was in force at the relevant time (“the September 2015 GPDO”).

In preparation for the site visit, the Appellant placed a rod against the outside wall of the existing house, next to the bay window and adjacent to the side extension. Holes were drilled to allow the rod to continue up through the structure of the roof and out through the roof surface. A second rod was placed horizontally across to the roof of the extension. The Appellant contended that the horizontal rod extended above the surface of the appeal roof extension.

During the site visit, the Inspector observed the rods in place and made notes. She did not ask questions and did not ask for other measurements of the eaves to be taken.

By a decision letter (“DL”) dated 18 February 2021 the Inspector (D. Boffin BSc (Hons) DipTP MRTPI Dip Bldg Cons (RICS) IHBC) dismissed the appeal and upheld the enforcement notice.

On the ground (c) appeal, the Appellant contended that there was no breach of planning control. The Inspector found, on the balance of probabilities, that the height of the eaves of the side extension roof exceeded the eaves height of the existing house. The side extension did not meet the limitation at A.1(d) of Class A of the September 2015 GPDO (DL 13).

On the ground (a) appeal (the deemed planning application), the Inspector found, at DL 21 – 31, that the side extension significantly harmed the living conditions of the occupiers of the house next door (No. 16 Rosslyn Avenue) because of the loss of daylight and sunlight through their kitchen windows. She rejected the Appellant’s contention that he would be entitled to re-build the exact same extension, under his permitted development rights, and therefore that was the fall-back position with which the current extension should be compared. The Inspector found that the Appellant’s proposed fall-back would not comply with permitted development limits. A side extension which did comply with permitted development limits would have a lesser impact on the living conditions of the occupiers of No. 16.

On the ground (f) appeal, the Inspector found that removal of the rear section of the extension, as required by the Enforcement Notice, did not exceed what was necessary to remedy the injury to amenity for the occupiers of No. 16. The Appellant did not put forward any alternative proposal, merely relying on his claimed permitted development rights to re-construct the exact same extension.

The Inspector made a witness statement in response to the Appellant’s appeal to the High Court, on 19 April 2021. It stated:

When HH Judge Jarman QC, sitting as a Deputy High Court Judge, granted permission, he also ordered the parties to file a joint Position Statement containing agreed measurements of the eaves of the existing dwellinghouse and of the side extension. The parties arranged a site visit, at which measurements were taken, and a joint Position Statement, accompanied by a plan and photographs, was filed on 30 July 2021. In a preliminary ruling, I rejected Mr Kohli’s submission that the Position Statement was inappropriate because the Court was only concerned with material which was before the Inspector. The Position Statement was useful to the parties as it enabled them to identify which factual matters were agreed, and which were in dispute, and thereby narrow the issues. I had well in mind that the Inspector did not have the benefit of the measurements which were in the Position Statement.

The key points in the Position Statement were as follows:

The parties were in agreement that the height of the eaves of the side extension was 3055 mm on the left end nearest the house, and 3045 mm on the right end.

The parties did not agree the point at which the eaves of the existing dwellinghouse should be measured for the purposes of the September 2015 GPDO. Various measurements were taken.

Measurement B was 2900 mm. It was the height from the ground to the top of the roof tile directly above, at the point where the wall of the existing house meets the wall of the side extension. It was agreed by all parties that this point represents the former outer corner of the front and side wall of the existing house, before the extension was built.

All parties agreed that, at the site visit and in her decision, the Inspector determined the height of the eaves of the existing dwellinghouse by reference to measurement B. The Secretary of State and the Council were in agreement that measurement B on the plan was the correct point at which to measure the height of the eaves. However, the Appellant disagreed.

Measurement C was 3060 mm. It was the height from the ground level (at the base of the front elevation of the outside wall) to the point where the outside wall would meet the upper surface of the roof slope but at a point 18 cm to the left of the point used for measurement B.

Measurement D was the point at which the Appellant inserted rods into the roof at the time of the Inspector’s site visit. He contended that this was the correct point at which to measure the height of the eaves. It was higher up the roof slope than measurement C. It was agreed between the parties that this measurement exceeded the height of the eaves of the side extension, and therefore there was no need to measure it.

Section 57(1) TCPA 1990 provides that planning permission is required for development of land. By section 55(1) TCPA 1990, “development” means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in the use of land.

Section 58(1) TCPA 1990 provides for two routes by which planning permission may be obtained: first, by development order; and second, by a grant of planning permission from the local planning authority.

Section 59 TCPA 1990 provides for the making of development orders by the Secretary of State. The development order which governs this case is the September 2015 GPDO. Article 3(1) of the September 2015 GPDO grants planning permission for the classes of permitted development as described in Schedule 2 to the September 2015 GPDO.

Class A of Part 1 of the September 2015 GPDO provides:

Paragraph A.1 to Schedule 2 to Part 1 of the September 2015 GPDO imposes certain conditions and limitations on the statutory grant of planning permission. It provides:

The Ministry of Housing, Communities and Local Government’s publication ‘Permitted Development Rights for Householders’ Technical Guidance’ (September 2019) (“the Technical Guidance”) provides guidance on the measurement of eaves height. It provides:

This guidance is illustrated with a diagram, and the following accompanying text:

The Technical Guidance then states:

In Waltham Forest Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 2816 (Admin), Vincent Fraser QC (sitting as a Deputy High Court Judge) considered the definition of the term “eaves” in a different context to this at [15], in the context of a dispute about:

By section 171A(1) TCPA 1990, carrying out development without planning permission constitutes a breach of planning control. Section 172(1) TCPA 1990 empowers a local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control, and that it is expedient to issue the notice.

Section 174(1) TCPA 1990 permits a person having an interest in land to appeal to the Secretary of State against the notice. An appeal may be brought on the grounds set out in section 174(2) TCPA 1990. This provides, so far as is material:

Section 289 TCPA 1990 provides for a right of appeal to the High Court against a decision of an Inspector on a point of law.

The general principles of judicial review are applicable to a challenge under section 289 TCPA 1990. Thus, the Appellant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.

The exercise of planning judgment and the weighing of the various issues are matters for the Inspector and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26; Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, per Lord Keith at 764G-H; per Lord Hoffman at 780 F-H.

An appeal under section 289 should not be used as an opportunity for a review of the planning merits (see per Sullivan J. in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6] – [8]).

A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.

At the hearing of the appeal, the Appellant relied upon Ground 1 (as amended) and Ground 4. He no longer pursued Grounds 2 and 3.

On the ground (c) appeal, the Appellant submitted that the Inspector erred in law in failing to have regard to the fact that No. 18 had eaves of different heights. He submitted that the pitched roof over the bay window ran at a steeper plane than the plane of the pitched roof on the rest of the building, which meant that the height at which the outer wall met the roof slope was higher than in other locations on the house.

Therefore, the Inspector ought to have considered and applied the passage in the Technical Guidance which provided:

In failing to consider and apply this passage in the Technical Guidance, the Inspector failed to have regard to a significant material factor, which would have led to a decision in the Appellant’s favour in the appeal.

In response, the Secretary of State submitted that the Inspector correctly directed herself in accordance with the terms of the September 2015 GPDO and the Technical Guidance. As was apparent from the photographic evidence, the existing house did not have eaves of different heights. The submission now made by Mr Fraser-Urquhart QC was never put to the Inspector in the appeal before her, and therefore she cannot be criticised for not addressing it.

I accept the Secretary of State’s submissions. The Inspector correctly referred to paragraph A.1(d) of Class A of the September 2015 GPDO, and the Technical Guidance (DL 9 and 10). She explained why she considered that the Council’s assessment of the relative height of the eaves at the time of the LDC applications in 2017 and 2019 was incorrect (DL 11). She then set out her own assessment at DL 12 and 13:

I consider that the Inspector’s exercise of judgment on this issue is unassailable. Applying the wording of paragraph A.1(d) of Class A, and the Technical Guidance, she correctly assessed the height of the eaves, by reference to the lowest point of the roof slope of the existing house, where it met the corner of the front and side walls adjoining the extension.

One can see from the measurements in the joint Position Statement that the height of the eaves of the existing house (measurement B) was significantly lower than the height of the eaves of the side extension (measurement G). Therefore, it is unsurprising that the Inspector was able to make a reliable visual comparison between the two; it was not necessary for her to measure it.

At the Inspector’s site visit, the Appellant erroneously positioned the rod part way up the roof (measurement D), which was above the eaves and above the lowest point of the roof slope where it met the outside wall. The Inspector was entitled to reject the Appellant’s positioning, as it was contrary to paragraph A.1(d) of Class A and the Technical Guidance.

The Appellant and his planning consultant did not, at any stage, submit to the Inspector or the Council that the existing house had eaves of different heights. There was agreement among all parties that the assessment of height should be conducted at the bay window roof, presumably because the dormer roof and the rear extension made it difficult to undertake it at any other point. The photographs of the existing house before the dormer extension show that the eaves were at a uniform height throughout. The photograph taken by the Inspector at her site visit also shows the eaves at a uniform height (save for the dormer roof which was to be disregarded for this purpose). Therefore there was no reason for the Inspector to consider the passage in the Technical Guidance which refers to houses with eaves of different heights, nor to address this issue in her decision letter.

The Judge in the Waltham Forest case helpfully drew together various definitions of the term “eaves”, confirmed in the authorities cited. The common and normal meaning of the term “eaves” is the lowest part of a roof which projects beyond the wall below, which is reflected in the Technical Guidance. In the light of the meaning of the term “eaves”, I am unable to find any sound basis for Mr Fraser-Urquhart QC’s submission that, because the pitched roof above the bay window has a steeper plane than that of the pitched roof on the main building, it necessarily follows that the existing building has eaves of different heights, when measured from the ground.

For these reasons, Ground 1 does not succeed.

On the ground (a) appeal, the Appellant submitted that the Inspector failed to consider the appropriate fall-back position, namely, a side extension which complied with permitted development limitations, and erroneously identified the fall-back position as being a reconstruction of the existing side extension.

Mr Fraser-Urquhart QC referred me to the case of Coln Park LLP v Secretary of State for Communities and Local Government & Anor [2011] EWHC 2282 (Admin) in which Collins J. summarised the fall-back argument at [31]:

In R(Mansell) v Tonbridge & Malling BC [2017] EWCA Civ 1314, Lindblom LJ considered the status of a fall-back development as a material consideration at [27], confirming that the decision-maker must determine as a matter of judgment whether there was a “real prospect” that it would be reverted to.

The Secretary of State submitted that the fall-back position which the Appellant contended for in his appeal submissions was the demolition of the unauthorised side extension and the re-erection of “the exact same extension”, in reliance upon his permitted development rights (pages 4-5 of the Appellant’s Appeal Representations to the Inspector). The Inspector correctly gave that fall-back position little weight.

The Secretary of State further submitted that the fall-back position of a smaller GPDO-compliant side extension was considered by the Inspector, despite the fact that it was not put forward by the Appellant. The Inspector concluded that the existing side extension caused additional significant harm to the living conditions of the occupiers of No. 16 than a GPDO-compliant extension would do, and so gave it little weight. That was a conclusion she was entitled to reach in the exercise of her planning judgment.

I accept the Secretary of State’s submissions. The Appellant, who had the benefit of advice from a planning consultant, clearly stated in his Appellant’s Appeal Representations to the Inspector (at pages 4-5) that to comply with the enforcement notice he would “demolish the unauthorised extension” and then “re-erect the exact same extension … in reliance upon its restored development rights”. The Council responded in its Final Comments, explaining the flaw in the Appellant’s reasoning on the fall-back position, in particular, that it did not consider that the existing side extension complied with the limitations in the September 2015 GPDO (pages 5-7). However, the Appellant persisted in the same approach in his Final Comments, stating the existing side extension complied with the September 2015 GPDO and that “the extension would be re-built in its exact current form if it was demolished as a result of the EN” (page 10). He adopted the same approach in the Ground (f) appeal – see DL 36.

The Inspector correctly summarised the Appellant’s written representations at DL 25. At DL 26, she found it was highly likely that the Appellant would wish to retain or replace the side extension because it contained the kitchen.

Then at DL 27 she explained that the existing side extension was not permitted development within the September 2015 GPDO, because of her earlier finding that it did not comply with the eaves height requirements in paragraph A.1(d) of Class A.

The Inspector went on to find, at DL 27 – 28, that part of the roof of the side extension joined the pre-2014 rear extension, and so the width of the total enlargement (the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined) would exceed the aggregation limits in paragraph A.1(ja) and sub-paragraph A.1(j)(iii). These limits were added by an amendment to the GPDO in 2017, and so would be applicable to any new build, though they were not in force when the existing side extension was constructed.

In my view, the Inspector was entitled to conclude, at DL 29, as a matter of fact and law, that there was no realistic prospect that the Appellant could re-erect “the exact same extension”, as it would not benefit from permitted development rights, and she was entitled to give it little weight as a fall-back position.

In the appeal before the Inspector, the Appellant did not put forward any proposals for a smaller side extension which did comply with the limitations of the September 2015 GPDO. Nevertheless, the Inspector did consider a GPDO-complaint extension as a potential fall-back in the course of her decision.

The Inspector identified as the main issue “the effect of the side extension upon the living conditions of the occupiers of No. 16 having regard to daylight and sunlight” (DL 20).

The Inspector acknowledged, at DL 22, the other factors which would have influenced daylight and sunlight levels, and then went on to consider the impact of the side extension upon No. 16. She said, at DL 23 - 24:

The Inspector then considered the impact of a smaller GPDO-compliant side extension at DL 29 and concluded:

The reference in DL 23 to the boundary treatment was a response to the submissions of the parties regarding the boundary fence. The Council said (at page 7 of its Final Comments):

In my judgment, the Inspector was entitled to reach these conclusions in the exercise of her planning judgment. Although they were briefly stated, they were sufficient to meet the standard required (South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, per Lord Brown, at [36]), particularly since this was not a point which was relied upon by the Appellant before her.

For these reasons, Ground 4 does not succeed.

The appeal is dismissed, for the reasons given above.