Esther Gurvits & Anor v Secretary of State for Levelling Up, Housing and Communities & Anor

Ms Murphy KC’s submissions in support of Ground 1 focused upon the Inspector’s finding in the final sentence of DL3 that –

Ms Murphy submitted that this finding had been fundamental to the Inspector’s determination of the ground (b), (c) and (d) appeals. In DL7, the Inspector said that before 2017, the separate units “were used for purposes incidental to the enjoyment of the dwellinghouses”, that they were “incidental until the units were subsequently joined together” and that it was the amalgamation of the three buildings in 2017 that resulted in the occurrence of the material change in the use of the outbuilding on the appeal site. In DL11, the Inspector found that it was that “amalgamation of the component parts of the outbuilding” which had resulted in a change in the character of the use of the outbuilding on the appeal site. In DL21 the Inspector had rejected the Appellants’ case on their ground (d) appeal on the basis that the evidence did not prove that the change in the use of the appeal site to “a single joined office space with associated storage separate from the dwellinghouses” had occurred on or before 4^th October 2011.

Leading counsel submitted that the Inspector had made a finding of fact that, prior to their amalgamation in 2017, each component part of the outbuilding on the appeal site was used solely in connection with the single dwellinghouse to the rear of which it was situated. That factual finding had in turn been the foundation of the Inspector’s determination of the grounds (b), (c) and (d) appeals. It was submitted, however, that the finding was unsupported by the evidence before the Inspector. In particular, it was unsupported by and in conflict with the unchallenged evidence given by the First Appellant in her witness statement. The First Appellant’s unchallenged evidence was said to have established that –

Given the First Appellant’s unchallenged evidence on these matters of fact, it was submitted, the Inspector was not in a position reasonably to conclude that each component part of the outbuilding at the appeal site had, prior to 2017, been solely used in connection with the individual dwellinghouse in the rear garden of which it had been erected. Either, therefore, the Inspector had failed to take the First Appellant’s unchallenged evidence into account or, if he had taken that evidence into account, his said conclusion in DL3 was irrational. In the further alternative, the Inspector had failed to give proper, intelligible or adequate reasons that conclusion, a conclusion upon which he had founded his determination of the ground (b), (c) and (d) appeals.

In short, it was submitted, the Inspector had determined each of the factual grounds of appeal against the Notice upon a finding which was simply at odds with the evidence before him. There was nothing in the First Appellant’s evidence upon which the Inspector could reasonably have concluded that, prior to their amalgamation in 2017, each component element of the outbuilding constructed on the appeal site had been solely used in connection with and for purposes incidental to each individual dwelling to the rear of which it was located.

I am unable to accept these submissions. They take too narrow a view both of the First Appellant’s evidence before the public inquiry and of the Inspector’s reasoning in support of his conclusions on the factual grounds of appeal against the Notice, that is to say, grounds (b), (c) and (d).

The First Appellant’s proof of evidence provided the basis for her evidence before the Inspector. It was not, however, her entire evidence. The First Appellant gave oral evidence at the public inquiry and was cross examined on her proof of evidence by counsel for the Second Respondent.

There is no transcript of the First Appellant’s oral evidence before the court. However, the court does have before it the closing submissions made by counsel in writing to the Inspector at the public inquiry. The closing submissions of counsel to the Second Respondent, Ms Flora Curtis, helpfully summarised the factual history of the development and use of the three Hurstwood Road properties and the appeal site, drawing not only upon the written evidence but also evidence given orally at the public inquiry by the First Appellant.

During the hearing of this appeal, I stated that I intended to accept counsel’s written closing submissions as an accurate account of the witnesses’ oral evidence given at the public inquiry, unless the accuracy of that account was challenged by either party before me. As I understood their respective submissions, neither Ms Murphy KC nor Mr Lewin did challenge the accuracy of counsel’s record in written closing submissions of the oral evidence given at the public inquiry.

The First Appellant’s oral evidence provided a rather more detailed account of the history of development and use of the outbuilding at the appeal site and its component parts than had been given in her proof of evidence.

The First Appellant explained that the outbuilding to the rear of 48 Hurstwood Road had been originally constructed and used for storage purposes in connection with her family’s occupation of the dwellinghouse at that property. Within six months of its construction in 1998, she had begun to use that outbuilding as a place in which to work. The outbuilding remained the only such building to the rear of 46, 48 and 50 Hurstwood Road until 2013.

Having purchased 46 Hurstwood Road in 2013, the Appellants built a shed to the rear of that property. It was a separate structure to the outbuilding to the rear of 48 Hurstwood Road. It had its own entrance. At the time of its construction, the Appellants had considered letting the shed along with the dwellinghouse at 46 Hurstwood Road. Within three months, however, the First Appellant had decided to use the shed as additional storage space and installed a connecting door between the shed and the outbuilding to the rear of 46 Hurstwood Road.

The Appellants constructed the outbuilding to the rear of 50 Hurstwood Road in around 2017. In his evidence to the public inquiry, the enforcement officer produced an email received in October 2021 from an agent acting on behalf of the First Appellant, a Mr Joel Stern, which stated that this building had “started out as Mrs Gurvits’ personal space, and slowly the rest of the staff moved over to that part of the building, leaving the old space as storage etc”. In her oral evidence to the public inquiry, the First Appellant accepted Mr Stern’s statement as accurate and that the conversion of the outbuilding to the rear of 50 Hurstwood Road into office space and the movement of staff into that space had occurred later.

It is in the light of this more detailed account of the history of development and use of the outbuilding and its component parts in the years since 1998 that the Inspector’s findings DL3 are to be judged. It was this more detailed evidence, rather than simply the evidence set out in the First Appellant’s proof of evidence, which provided the proper evidential basis for the Inspector’s consideration of the factual grounds of appeal before him.

I return on that basis to the actual findings made by the Inspector in DL3. In that paragraph, the Inspector stated his understanding that the appeal site had formerly been used as three separate outbuildings by the appellants and their family; and that each outbuilding had been used for purposes incidental to the enjoyment of the associated dwellinghouses at 46, 48 and 50 Hurstwood Road. Those findings were indeed supported by the evidence before the Inspector.

It was the First Appellant’s evidence that following its construction in 1998, the outbuilding to the rear of 48 Hurstwood Road had been used for a number of years for storage purposes and as a home office in connection with her and her family’s occupation of the dwellinghouse at that property. It was the First Appellant’s evidence that the shed to the rear of 46 Hurstwood Road had been constructed in 2013 as a separate building. It had been intended initially for use in connection with occupation of that property. Shortly after its construction, the First Appellant had begun to use it as additional storage space and installed a connecting door to link it to the existing outbuilding to the rear of 46 Hurstwood Road. Finally, following construction of the building to the rear of 50 Hurstwood Road in 2017, in her oral evidence the First Appellant accepted that she had initially used that building as her personal space; it was later that it began to be used as the office as described by the enforcement officer following his inspection of the appeal site on 14^th July 2021.

In my view, the Inspector’s findings in DL3 accurately respond to and reflect that evidence of former use of the appeal site. Prior to their amalgamation into a single outbuilding in 2017, the three component elements of the appeal site had indeed been used as three separate outbuildings by the Appellants and their family. Each element had been used for purposes incidental to the enjoyment of the associated dwellinghouses at 46-50 Hurstwood Road. As the Inspector also noted, each of the component units had been constructed under the Class E permitted development right, a fact which had been attested to by the Appellants’ planning consultant in his written response to the planning contravention notice on 12^th August 2021. The Class E permitted development right contemplates a building constructed within the curtilage of a dwellinghouse which is “required for a purpose incidental to the enjoyment of the dwellinghouse as such”.

It is unsurprising that in the present case, each of the three outbuildings erected under the Class E permitted development right should have been put to use, at least for an initial period following their construction, for such a purpose or purposes. The First Appellant’s evidence to the public inquiry established that had indeed been the case.

It was submitted that the First Appellant’s evidence in her written proof of evidence had been unchallenged at the public inquiry. That may be a fair way of characterising the position, in the narrow sense that it appears not to have been put to the First Appellant that her evidence was wrong or untrue in some material respect. However, it is clear that the First Appellant’s written proof by no means represented the entirety of her evidence to the public inquiry. On the contrary, through the process of cross-questioning she gave a more detailed and precise account of the history of development and use of the appeal site. The Inspector was entitled to rely on that more detailed and precise evidence as the factual foundation for his findings in DL3. In my judgment, those findings were properly based on the evidence before him and were a reasonable response to that evidence.

Ms Murphy KC’s submission was that in DL3 the Inspector had made a finding that each component part of the outbuilding at the appeal site had, prior to 2017, been used solely in connection with the particular dwellinghouse at the rear of which it was located. She submitted that, even allowing for the more detailed evidence which the First Appellant was recorded as having given orally at the public inquiry, there was no basis for that finding. In particular, she argued that there had been no evidence of the use of the shed to the rear of 46 Hurstwood Road, or of the outbuilding to the rear of 50 Hurstwood Road, solely in connection with the dwellinghouses at those respective properties.

I do not consider that the Inspector’s findings in DL3 are to be read as narrowly as Ms Murphy submitted they should be. In my view, on a fair reading of DL3, the Inspector did not find that the outbuildings to the rear of 46 Hurstwood Road and 50 Hurstwood Road had been used solely in connection with the dwellinghouse to the rear of which they were located.

To the contrary, the Inspector accepted that there had been a degree of overlap, in the sense that the First Appellant in particular, as occupier of 48 Hurstwood Road had used not only the outbuilding to the rear of that property, but also those to the rear of 46 and 50 Hurstwood Road respectively for her own purposes. However, the common and significant aspect of that former use was that in each case, prior to their amalgamation in 2017, each separate building had been used for purposes which were incidental to occupation and enjoyment of the dwellinghouses.

It was the fact of that former incidental use of each of the three buildings (for several years in the case of those to the rear of 46 and 48 Hurstwood Road, for a very much shorter period in the case of that to the rear of 50 Hurstwood Road), which was elicited from the First Appellant in her oral evidence. It was that fact which in turn was of significance to the Inspector’s consideration of the appeals on grounds (b), (c) and (d), since it was that former use which was in contrast to the use of the appeal site as an office with associated storage, following the amalgamation of the three separate components into a single outbuilding later in 2017.

That contrast between the former use of each of the three outbuildings for purposes incidental to occupation of the dwellinghouses and the subsequent creation of a distinct unit of occupation for an office with associated storage is clearly articulated in DL7 as the basis for the conclusion that the change of use alleged in the Notice had occurred. Thereafter, it provides the foundation for the Inspector’s conclusion that there had indeed been a change in the character of the use of the appeal site (in DL 10ff.), a material change which had occurred only following amalgamation of the three separate buildings into a single unit of occupation in 2017 (in DL21ff.).

For these reasons I do not accept that the Inspector’s findings in DL3 are inadequately explained. Nor do I accept that those findings betray any ignorance or misunderstanding on his part of the evidence before him from the First Appellant. On the contrary, in my judgment, the findings in that paragraph are properly and clearly founded upon that evidence. The Inspector was entitled to make those findings and to rely on them, as he did, in his determination of the appeals on grounds (b), (c) and (d) in section 174(2) of the Act. Ground 1 accordingly fails.

The focus of the Appellants’ complaint under this ground was the Inspector’s reasoning in DL17. In that paragraph, the Inspector dealt with the third of the “three key arguments” which, in DL10, he had identified as requiring to be determined in order to test, in the context of the ground (c) appeal, whether the character of the use of the outbuilding at the appeal site had materially changed.

I have set out DL17 in paragraph 65 of this judgment. Ms Murphy KC submitted that the question whether the erection of the outbuilding fell within the scope of the Class E permitted development right was immaterial to the issue which the Inspector was called upon to determine under ground (c). The Notice was concerned with an allegation of an unauthorised material change in the use of the appeal site. It was not alleged that the erection of the outbuilding, or of its three constituent parts which had been joined together in 2017, was unauthorised operational development.

In the final sentence of DL17, leading counsel submitted, the Inspector had treated the building operations carried out in 2017 in order to join together the three component parts of the outbuilding as axiomatically resulting in a material change in the use of the whole outbuilding. That was to confuse the operational development which had resulted in the creation of the outbuilding at the appeal site with the quite different issue raised by the Notice, which was whether the alleged material change of use had taken place.

Finally, it was submitted, DL17 was explicitly concerned with one of three key arguments to be addressed in determining the ground (c) appeal. The Inspector’s error could not sensibly be characterised as peripheral to that determination. It could not properly be said that had he not taken account of the immaterial question of the lawfulness of the outbuilding itself, he would nevertheless have decided to dismiss the ground (c) appeal.

In my view, the Appellants’ argument under ground 2 is based upon a misunderstanding of the Inspector’s reasoning in DL17. In that paragraph, the Inspector did not set out to decide whether or not the operational development involved in the erection of the outbuilding or its constituent parts had been within the scope of the Class E permitted development right.

As Ms Murphy submitted, it would have been surprising had the Inspector set out to address that question, given both that the Notice was concerned with the lawfulness of the use of the appeal site and that it was not suggested that the erection of the outbuilding was itself amenable to enforcement action. I note that in DL19 the Inspector recorded that there had been no dispute that the building structures themselves could not be enforced against.

The issue considered by the Inspector in DL17 was quite different: it was whether following the amalgamation of the three buildings constructed under the Class E permitted development right into a single unit of occupation, the use of the outbuilding as a single office with associated storage remained within the scope of the use or uses contemplated for a building erected in reliance on the Class E permitted development right.

That was, in my view, a question which was capable of being relevant to the Inspector’s decision on the ground (c) appeal in this case. It is important to have in mind that the Class E permitted development right gives planning permission for operational development comprising of a range of structures and facilities whose common element is that they are “required for a purpose incidental to a dwellinghouse as such”. It was the Appellants’ case that the outbuilding at the appeal site had come into being as a result of the joining together of three structures, each of which had originally been erected in reliance on the Class E permitted development right. It was, therefore, reasonable for the Inspector to proceed on the basis that each of those three structures had been erected in contemplation of being required for a purpose or purposes incidental to the enjoyment of a dwellinghouse as such. That being the case, the question whether the use of the conjoined building remained within the scope of the Class E permitted development right – in other words, continued to be used for a purpose or purposes incidental to the enjoyment of a dwellinghouse as such – was at least capable of being relevant to his determination of the ground (c) appeal.

It was for the Inspector to decide whether that was material to his consideration of the ground (c) appeal; and, if so, the weight which he gave to that factor in arriving at his overall conclusion as to whether the use of the amalgamated outbuilding at the appeal site as an office with associated storage involved a material change for planning purposes. In my judgment, the Inspector did not err in law in taking into account the issue which he addresses in DL17.

Even if I had accepted the Claimant’s argument under ground 2, I would not have concluded that his error was material for the purposes of his overall determination of the ground (c) appeal. I accept the First Respondent’s submission that the Inspector’s careful consideration in DL10-DL16 of the question whether the character of the use of the outbuilding had materially changed, and his findings in those paragraphs, would clearly have led him to the same conclusion that the ground (c) appeal should fail: Simplex GE (Holdings) Limited v Secretary of State for the Environment [2017] PTSR 1041, 1060B-F. The Claimants do not contend that the Inspector misdirected himself in DL 10; nor do they seek to impugn his assessment of the evidence in DL11-16.

For these reasons, I reject ground 2.

Ms Murphy KC submitted that the Inspector’s decision to retain the second and third requirements in the Notice was in breach of the Mansi principle. The outbuilding was a lawful structure. The requirement proposed on appeal by the Appellants, which the Inspector had included as an additional fourth requirement, would on being complied with result in the practical separation of the outbuilding into three distinct units, each capable of being used lawfully for purposes incidental to the enjoyment of the dwellinghouse to the rear of which it was situated: see section 55(2)(d) of the Act. However, by retaining the second and third requirements in the Notice the Inspector had cut down or interfered with the Appellants’ rights under section 55(2)(d) of the Act. The Appellants could not risk installing a toilet or kitchen facilities in any of the three outbuildings, since to do so would on the face of it, contravene the second and third requirements of the Notice and so place the Appellants at risk of prosecution under section 179(1) and (2) or section 181(3) and (5) of the Act.

Ms Murphy emphasised that the Notice required the permanent removal of both the toilets and the kitchen and cooking facilities within the outbuilding.

It was submitted that the effect of retaining the second and third requirements in the Notice was to produce unsatisfactory and prejudicial uncertainty as to the extent to which the Notice affected the Appellants’ enjoyment of their existing use rights in relation to the appeal site and the properties at 46, 48 and 50 Hurstwood Road. The Appellants’ purpose in proposing the fourth requirement in substitution for the second and third requirements had been to avoid that uncertainty, whilst providing a practical remedy for the breach of planning control alleged in the Notice. In following the course that he did in DL40-DL41, the Inspector had acted in breach of the Mansi principle, irrationally and failed to explain adequately why he did not accept the Appellants’ proposed solution.

I did not understand Ms Murphy KC to question the validity of the Inspector’s conclusion in DL40, that neither the requirement to remove the existing male and female toilets nor the requirement to remove the existing kitchen facilities from the outbuilding were excessive, in the circumstances of this case. In my judgment, she was correct not to do so. As the Inspector himself mentioned in DL40, it is well established that the steps required to be taken by an enforcement notice can include the removal of works that are integral to the unauthorised change of use: see Kestrel Hydro at [53] supra. paragraph 31. In this case, the Inspector was able reasonably to find that the male and female toilets and the kitchen facilities had been installed in the outbuilding as part and parcel of the breach of planning control enforced against by the Notice.

Leading counsel’s submission had a more precise focus. It was that the stated requirement permanently to remove all toilets and kitchen facilities from the outbuilding created unacceptable uncertainty and risk: i.e. that the future installation of a toilet or some limited kitchen facilities for the innocent purpose of using one of the three outbuildings incidentally to residential occupation, perhaps as part of a home office or a playroom, would nevertheless fall foul of the Notice and expose the Appellants to criminal sanction for its breach.

I can see some force in the argument that it was unnecessary, on reflection, for the second and third requirements to have been expressed as requiring the removal “permanently” of kitchen facilities and toilets from the outbuilding. It would have been sufficient simply to have required their removal, which would have achieved the intended objective as the Inspector saw it, as he indicated in the penultimate and final sentence of DL40.

It does not, however, follow that the requirement for permanent removal of the toilets and kitchen facilities results in a breach of the Mansi principle.

The Appellants’ concern, as expressed through the submissions advanced on their behalf, was as follows. If in future they take steps to install a toilet or some kitchen facilities in one or other of the now separated outbuildings in the exercise of their rights under section 55(2)(d) of the Act, they will be exposed to the risk of prosecution for breach of the Notice under either section 179 or section 181 of the Act. The same concern might be expressed by reference to section 55(2)(a) of the Act, since it seems unlikely that the installation of a toilet or some modest kitchen facilities in one of the outbuildings would materially affect the external appearance of that building.

In my view, that expressed concern must be considered against the context of and in the light of the clear statement of principle by the Court of Appeal in R v Harfield at p.30, supra. paragraph 33. That was a criminal case, in which Mr Harfield faced prosecution for breach of an enforcement notice. Latham J stated the effect of the Mansi principle as being that no enforcement notice may take away legally permitted rights and that the authorities clearly establish “the proposition that any enforcement notice will be construed so as to retain” legally permitted rights. The same proposition was stated by Ward LJ at [27] in Duguid, supra. paragraph 34.

Applying that proposition to the present case, the substantive position is clear. The outbuilding is a lawful building. Its separation into its three former constituent elements in accordance with the fourth requirement of the Notice will result in practice in three lawful outbuildings, each of which will in future be able to be used for purposes incidental to the dwellinghouses to the rear of which they are situated. The right to use each of the three outbuildings for such purposes is a statutory right, defined as such by section 55(2)(d) of the Act. The right to carry out internal works for the improvement or other alteration of a building is also a statutory right, defined as such by section 55(2)(a) of the Act. Both are legally permitted rights which cannot be taken away by the Notice. As a matter of established legal principle, in any future criminal proceedings, the Notice must be construed so as to retain those rights.

That analysis leaves only the question posed by Ward LJ at [28] in Duguid, as to whether those legally permitted rights needed to be expressly identified and preserved in the Notice itself, in order to avoid future argument as to their extent. In my judgment, it is clear that the Inspector was under no such obligation in the present case. As was found to be the position in Duguid, this appeal is plainly one in which there was absolutely no need at all to refer to the statutory rights enjoyed by the Appellants under sections 55(2)(a) and 55(2)(d) of the Act, because each of those statutory enactments operate as a matter of law within parameters that are certain, being those defined by section 55(2) of the Act itself.

In my judgment, the Inspector’s reasoning in DL41 is consistent with and founds upon these established principles. As he said, the additional requirement to remove the linking doors would ensure that the outbuildings are not left without a lawful use. Instead, returning the outbuilding to its three constituent elements would enable those three buildings to be used lawfully for purposes incidental to the enjoyment of the three respective dwellinghouses. In other words, the fourth requirement had a proper and reasonable purpose in addition to the proper and reasonable purpose served by the second and third requirements. Fulfilment of the second, third and fourth requirements would restore the position before the breach of planning control took place. The fourth requirement had the additional benefit of enabling a beneficial future use for each of the three outbuildings, one that would enable the Appellants to enjoy their legally permitted rights under sections 55(2)(a) and 55(2)(d) of the Act.

In my judgment, for these reasons the retention of the second and third requirements has not resulted in a breach of the Mansi principle. The Inspector did not act irrationally in concluding as he did in DL40-DL41 that those requirements should be retained. Nor is his conclusion that they should remain as requirements of the Notice alongside the additional, fourth requirement lacking in adequate reasoning. Ground 4 must be rejected.

For the reasons which I have given, this appeal is dismissed.