Empire Communications Limited & Anor v Secretary of State for Housing, Communities and Local Government & Anor

This case concerns a challenge to an enforcement notice appeal decision by one of the First Respondent (the “Secretary of State”)’s planning inspectors.

An enforcement notice (“the Notice”) was served by the Second Respondent (“the Council”) in relation to two terraced buildings at 254-256 and 258-262 Belsize Road (“the Properties/Buildings”). The First Claimant owns 254-256 and the Second Claimant owns 258-262.

The Notice applied to both of the Properties. Each of the two Claimants appealed against the Notice so far as it related to their part of the Properties (“the Appeals”).

The Appeals were heard together and were determined together in the same decision letter (the “Decision Letter”) by Peter White, a planning inspector appointed by the Secretary of State (“the Inspector”). Both of the Appeals were dismissed and the Notice upheld. A separate decision by the same inspector (the “Costs Decision Letter”) dismissed a claim for costs brought by the Claimants against the Council in relation to the appeals.

The Appellants now challenge the Decision Letter and the Costs Decision Letter. The arguments that they make complement one another and they have the same legal representation. Unless stated otherwise in this judgment, therefore, when I attribute arguments to “the Appellants” I am referring to both the First Appellant and the Second Appellant.

The Properties are the former offices of Decca Studios. Until their conversion they were in lawful use as offices.

Each of the Properties was converted purportedly in reliance on permitted development rights found in the Town & Country Planning (General Permitted Development) Order 2015 (as amended). The permitted development rights in question involved applicants applying to the Council for “prior approval” to the proposed changes of use. The prior approval procedure was followed and the Council confirmed that the Properties were permitted to be converted to a residential use (Footnote: ¹) through two separate decisions, as follows:

Both of the Properties were purported to be converted by the Appellants in reliance on the prior approval decisions. The evidence shows that residential occupation of 258-262 began in December 2016, and that residential occupation of 254-256 began in June 2018.

A slight complication to the planning history of 254-256 arises from an unauthorised extension that was built to it. The Council never enforced against this breach of planning control, and – although it argued otherwise when defending the appeal against the enforcement notice – it now accepts that the construction of the unauthorised extension has no bearing on the issues now before the court.

The evidence includes the Appellants’ business plans for the Properties, which show an intention to allow the Properties to be occupied for a mixture of short stays of less than 90 nights and longer stays. The significance of 90 nights as a duration for short stays arises from legislation peculiar to residential properties in central London. I consider the details of this legislation below because it is germane to the basis on which the Inspector dismissed the Appeals, and therefore to the grounds of appeal now brought against the Decision Letter. Two other central London properties operate in a similar manner under the brand name “Sanctum”.

In August 2017 the Council commenced an investigation into a suspected breach of planning control at 258 in view of how that property was being used. The Council served a planning contravention notice on the Second Appellant on 16^th August 2017 seeking further information about the use. The suspected breach of planning control stated in the notice was:

“Either:

i)

The change of use of permanent residential dwelling (C3) to serviced apartments (Class C1) and temporary sleeping accommodation (short term or holiday letting - sui generis use)

Or:

ii)

Without the necessary grant of express planning permission, the use of the above residential premises as ‘temporary sleeping accommodation’ for more than 90 nights in the same calendar year in breach of section 25A(2)(a) and (b) of the Greater London Council (General Powers) Act 1973”

The Second Appellant was required to provide requested information allowing the Council to investigate the alleged breach. It responded as it was required to.

Having considered the Second Appellant’s response and accompanying documents, the Council’s planning officer wrote to representatives of the Second Appellant on 25 January 2019 in the following terms:

“I would confirm that the Council can find no breach [sic.] of the 90 day limit for short term letting being breached at the site. In light of this, I would confirm that the enforcement case as referenced above has now been formally closed”

Notwithstanding the conclusion to the earlier enforcement investigation, on 25^th April 2024 the Council issued the Notice. Relevant points to note about its terms are as follows:

The Appellants appealed against the Notice. At the core of the Appellants’ resistance to the Notice was the fact that the Properties had lawfully been converted from their previous office use to residential dwellinghouses under Class C3 and that they remained in that use, hence there was no breach of planning control to enforce against.

Section 174(1) of the Town & Country Planning Act 1990 (being part of Part VII to the 1990, as referenced in s285) sets out, in paragraphs (a) to (g), the grounds on which an enforcement notice may be appealed. The Appeals were mounted initially on grounds (b), (f) and (g), which may be summarised as follows:

During the course of the appeal hearing the Inspector permitted the Appellants to rely also on Ground (d) as an additional ground of appeal:

The Appeals were heard by the Inspector at a public inquiry across three days in late November and early December 2024, with the Inspector undertaking a site visit on a fourth day. The Appellants were represented at the inquiry by Mr Richard Harwood KC and the Council by Mr Matthew Henderson, both of whom have also appeared before me in this appeal.

The Decision Letter and the Costs Decision Letter were both dated 11^th February 2025. The Inspector dismissed the Appeals other than for ground (f), holding that it was sufficient for the Notice to require a cessation of use as short-term let serviced apartments without also requiring a return to office use. The Appellants’ costs claim against the Council was dismissed.

The present appeal has been brought by the Appellants on six grounds which may be summarised as follows:

Appeals of this nature under section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) can only proceed to a substantive hearing with the permission of the court. In this case permission to proceed on all grounds was granted by Karen Ridge (sitting as a Deputy High Court Judge) on 19^th August 2025.

On this basis the appeals came before me for hearing.

Section 285(1) of the 1990 Act provides as follows:

“285.

— Validity of enforcement notices and similar notices

(1)

The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought”

Section 289(1) of the 1990 Act provides as follows:

“289 Appeals to High Court relating to certain notices

(1)

Where the Secretary of State gives a decision in proceedings on an appeal under … Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.

…

(4A)

In proceedings brought by virtue of this section in respect of an enforcement notice, the High Court or, as the case may be, the Court of Appeal may, on such terms if any as the Court thinks fit (which may include terms requiring the local planning authority to give an undertaking as to damages or any other matter), order that the notice shall have effect, or have effect to such extent as may be specified in the order, pending the final determination of those proceedings and any re-hearing and determination by the Secretary of State.

…

(6)

No proceedings in the High Court shall be brought by virtue of this section except with the leave of that Court and no appeal to the Court of Appeal shall be so brought except with the leave of the Court of Appeal or of the High Court”

Section 55(1) and (2) of the 1990 Act provide that:

“(1)

Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means … [amongst other things] … the making of any material change in the use of any buildings or other land.

(2)

The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land –

…

(f)

in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class”

Schedule 1 paragraph 3 to the Town and Country Planning (Use Classes) Order 1987 (“the UCO”) defines use class C3 (dwellinghouses) as:

“Use as a dwellinghouse (whether or not as a sole or main residence) by -

(a)

a single person or by people to be regarded as forming a single household; …”

Any use which does not fall within one of the defined classes in the UCO is known as a sui generis use.

Sections 25 and 25A of the Greater London Council (General Powers) Act 1973 provide as follows:

“25.

— Provision of temporary sleeping accommodation to constitute material change of use.

(1)

For the purposes of section 22(1) of the Act of 1971 (Footnote: ³), the use as temporary sleeping accommodation of any residential premises in Greater London involves a material change of use of the premises and of each part thereof which is so used.

(1A)

Subsection (1) is subject to section 25A.

(2)

In this section-

(a)

“use as temporary sleeping accommodation”  means use as sleeping accommodation which is occupied by the same person for less than ninety consecutive nights and which is provided (with or without other services) for a consideration arising either-

(i)

by way of trade for money or money's worth; or

(ii)

by reason of the employment of the occupant; whether or not the relationship of landlord and tenant is thereby created;

(b)

“residential premises” means a building, or any part of a building, which was previously used, or was designed or constructed for use, as one or more permanent residences.

25A Exception to section 25

(1)

Despite section 25(1), the use as temporary sleeping accommodation of any residential premises in Greater London does not involve a material change of use if two conditions are met.

(2)

The first is that the sum of—

(a)

the number of nights of use as temporary sleeping accommodation, and

(b)

the number of nights (if any) of each previous use of the premises as temporary sleeping accommodation in the same calendar year,

 does not exceed ninety.

(3)

The second is that, in respect of each night which falls to be counted under subsection (2)(a)—

(a)

the person who provided the sleeping accommodation for the night was liable to pay council tax under Part 1 of the Local Government Finance Act 1992 in respect of the premises, or

(b)

where more than one person provided the sleeping accommodation for the night, at least one of those persons was liable to pay council tax under Part 1 of that Act in respect of the premises.

(4)

For the purposes of subsection (2)(b), it does not matter whether any previous use was by the same person”

Section 171B of the 1990 Act has been amended subsequently, but at the relevant time it established the time limits within which any enforcement action must be taken as follows:

“171B – Time limits

(1)

Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed. 

(2)

Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. 

(3)

In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach”

The approach to be adopted by the court when reviewing an inspector’s decision letter was summarised by Lindblom LJ in St Modwen Developments Limited v Secretary of State for Communities and Local Government [2018] PTSR 746 at [6]-[7] as follows:

“6.

In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government[2014] EWHC 754 (Admin) (at paragraph 19) I set out the ‘seven familiar principles’ that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. They are: 

‘(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment(1981) 42 P&CR 26, at p.28). 

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953 , at p.1964B-G).

(3)

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations ‘whatever weight [it] thinks fit or no weight at all’ (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment[1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions[2001] EWHC Admin 74, at paragraph 6). 

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22). 

(5)

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993)66 P&CR 80, at p.83E-H).

(6)

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government[2012] EWHC 1419 (QB), at paragraph 58).’

… 

I turn now to consider the submissions of the parties in relation to the grounds that have permission to be pursued.

For the Appellants Mr Harwood submitted that on a proper interpretation of the Decision Letter the Inspector must have accepted that the Properties were in use as single dwellinghouses. This much can be derived from, for example, the Inspector’s conclusion that the applicable timescale for enforcing against the alleged breach of planning control was four years. That would only be the case if section 171B(2) of the 1990 Act applied. Section 171B(2) is confined to cases of a material change of use to a single dwellinghouse.

Furthermore, submitted Mr Harwood, the “90 nights” rule was complied with and hence sections 25 and 25A of the 1973 Act did not prescribe that a material change of use had occurred.

It follows that on the Inspector’s own findings the Properties were in use as single dwellinghouses within Use Class C3, not a sui generis use.

The Inspector’s findings could not have led rationally to any other conclusion. He found that the use was as a dwellinghouse by a single household which did not breach the 90 nights rule. The flats were laid out as dwellinghouses and had the facilities to be expected of dwellinghouses. Occupancy was transient rather than permanent, but there is nothing in use class C3 which stipulates that occupancy must be permanent. Only if the character of the use became that of an hotel or hostel would there be a material change of use, and there was no suggestion of this by the Inspector or by the Council. That the 1973 Act recognises there can be transient residential use by a single occupier of up to 90 nights reinforces this point.

Ms Victoria Hutton appeared for the Secretary of State. In response to the Claimant’s submissions on Ground 1, Ms Hutton submitted that it was important to construe the Decision Letter in the context of the appeal case mounted by the Claimant at the hearing. Ground 1 was directed to the Inspector’s treatment of the ground (b) appeal, which asserted that the matters alleged in the Notice had not occurred. A ground (c) appeal could have asserted that the use described in the Notice did not constitute a breach of planning control, but no ground (c) appeal was mounted by the Appellants.

If the Decision Letter were properly construed, the Inspector clearly did not find that the apartments were in class C3 use, nor did he find that the unauthorised use was as “dwellinghouses”. The Inspector expressly found that the layouts in the buildings shared many of the characteristics of a use class C3 property but he also noted several factors giving a contrary indication. He concluded therefore that the Properties were in sui generis use.

The Inspector’s conclusion on the correct categorisation of use was a matter for his expert planning judgement. This has not been challenged for being irrational, and it is thus a matter with which the court should not interfere.

By reason of these factors, the Inspector’s clear conclusion was that the use of the Properties was as sui generis serviced apartments, not use class C3 dwellinghouses.

Ms Hutton also submitted that the Inspector’s reference to the four-year time limit for taking enforcement action was a comment on the “even if …” alternative submissions made by the Appellants. It does not signal a finding that the Properties were in use as individual dwellinghouses.

Finally, submitted Ms Hutton, the provisions of the 1973 Act do not assist the Appellants. This was a case where the alleged breach of planning control was a change from office use to serviced apartments for short-term lets. Sections 25 and 25A do not therefore bear on the question the Inspector had to consider.

For the Council Mr Henderson generally adopted the submissions of Ms Hutton for the Secretary of State, but wished to develop some of the points of resistance.

Mr Henderson submitted that the Appellants’ case on Ground 1 proceeded from the Inspector’s conclusions on the ground (d) appeal, ignoring almost entirely the conclusions on the ground (b) appeal. The ground (b) findings were much more relevant to the argument now advanced, and they show that the Decision Letter is being misinterpreted by the Appellants. The Inspector’s finding that. despite the individual areas of occupation within them, the Properties operated as a single planning unit necessarily meant that they could not be in use as a “dwellinghouse”.

Mr Henderson also referred to the Costs Decision Letter as reinforcing the Inspector’s conclusion that the use of the Properties was not as use class C3 dwellinghouses. Mr Henderson added – as an alternative submission – that the Appellants’ argument depended upon each apartment being treated as if it were an individual planning unit, and the Inspector made a specific finding that this was not the case.

As to Ground 2(a) Mr Harwood submitted, having regard to the terms of the Notice and to the officer’s delegated report which preceded it, that “short-term” was understood originally by the Appellants to be a short-hand for the 90 nights rule, but that at the inquiry the Council’s witness conceded in cross-examination that short-term in this context could mean longer than 90 nights and as long a period as six months or a year. On this basis, submitted Mr Harwood, the only proper way to approach the Notice was to conclude that it was aimed at preventing a use of the apartments for more than 90 nights, contrary to the provisions of the 1973 Act.

As to Ground 2(b) Mr Harwood emphasised the importance of clarity in the interpretation of an enforcement notice, given the criminal sanctions that attach to a future breach. For this reason, if, contrary to the submission in Ground 2(a), “short term lets” did include a period longer than 90 nights then there was a lack of certainty over what the prohibited period actually was.

As to Ground 2(a), Ms Hutton submitted that the terms of the Notice were clear. “Serviced apartments for short term lets” is not a term of art and was not intended to be. Whether or not the description matched the facts was a matter for the Inspector’s planning judgement. The Notice did not import references to the 1973 Act, and this was in any event unsurprising given the Inspector’s finding that the Buildings should be treated as a single planning unit rather than the apartments within them being treated as a series of independent units of occupation.

Moreover, submitted Ms Hutton, as to Ground 2(b) the Council’s case at the inquiry was that it did not need to define a threshold duration for what “short-term” meant. Interpreting the Notice requires the exercise of judgement by the Appellants, but that is not unusual in the context of enforcement notices brought against residential-type uses such as hotels and hostels. No part of the Appellants’ case before the Inspector sought further prescription of the permitted duration of stay, nor was any judicial review of the Notice commenced (as it could have been), and for these reasons it is impermissible for the Appellants to now bring this complaint as part of an appeal before the court.

But in any event in the circumstances of this case the duration of the permitted stay is irrelevant, because the Inspector found that the Appellants do not have permission to use the Properties for any type of residential occupation no matter what the duration.

Adopting the Secretary of State’s submissions, Mr Henderson added – with reference to Ground 2(a) – that the Notice did not allege a material change of use from use class C3 dwellinghouses to the present use but from offices to the present use. The 1973 Act therefore had no bearing on what the Inspector needed to decide. The position is unchanged by the extrinsic material (for example the officer’s delegated report) even if it were appropriate to have regard to it. The officer’s report made clear that it was not alleging a breach of planning control by reason of the 1973 Act provisions.

As to Ground 2(b), Mr Henderson submitted that the Notice clearly required a cessation of the transient occupation of the apartments howsoever “short term” is defined. More importantly, compliance with the Notice leads to no difficulties in differentiating between different types of residential use because the only use to which the Properties can lawfully revert is as offices.

Mr Harwood’s first submission under this ground was that once the apartments were physically converted from offices and fitted out as such, the residential use commenced even if the apartments were not occupied until later. The Council could therefore have issued an enforcement notice from that point, but failed to do so. This view, Mr Harwood submitted, was supported by case-law on the specific point about when a use commenced. He also added that in general terms the Claimants’ case was consistent with Sullivan J’s plea for “a modicum of common sense” when judging questions of when a material change of use commenced (see North Cornwall District Council v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2318 at [32]).

In addition, submitted Mr Harwood, the correct period after which immunity from enforcement action was conferred was four years, not ten years. Whilst there was a divergence in the cases presented to the Inspector by the Appellant and the Council, on either basis there was always a time when some of the apartments within the Buildings will have been occupied. As such, the Inspector was wrong to focus on the periods of vacancy of certain apartments as a reason why the nature of the use at that time could not have been ascertained, and why there could have been no enforcement action taken for parts of the four-year immunity period.

Ms Hutton submitted that calculating time based on when the apartments were first equipped for occupation, rather than actually being used as such, would have been the wrong approach to take.

The Inspector’s conclusion on whether the use had become immune from enforcement action was a matter for the exercise of his expert planning judgement. On the evidence the Inspector was not satisfied that the use had been continuous for the requisite period, relying in part on the substantial periods of vacancies for most of the apartments. These were findings he was entitled to make, especially in the absence of any argument made to him at the inquiry about the significance of a continuity of use.

The Appellants’ argument that even serviced apartments should be treated as being dwellinghouses if they were fully equipped flats, and therefore benefit from the four-year immunity period rather than ten years, was considered and rejected by the Inspector. He concluded that the Properties were a single planning unit occupied as serviced apartments for short term lets and that the use had changed to this from the previous use as offices. On this basis it was not only permissible for the Inspector to conclude that the ten-year immunity period applied, it was the only conclusion that the Inspector could rationally reach.

Mr Henderson endorsed the submissions made by Ms Hutton for the Secretary of State. He added that the immunity period was plainly ten years rather than four years, because the use alleged was not use as a dwellinghouse, but that even if the correct period were four years the Inspector’s approach was the correct one. To be immune from enforcement action a use had to occur continuously for the requisite period, and in this case the Inspector had identified substantial gaps in the occupation of most units. Fundamentally, the burden of proof in resisting the Notice fell to the Claimants to discharge and, from the Inspector’s findings recorded in the Decision Letter, they had plainly failed to discharge that burden.

Mr Harwood acknowledged that this ground derived from the Council’s error in drawing the red line in the Notice around only part of 258-262. The result is that, when looking at internal layouts, some individual apartments in the building that is 258-262 Belsize Road are bisected.

Mr Harwood’s submission was that it was irrational for the Council to serve the Notice when it would cover parts of some individual apartments but not other parts. Some apartments lost entire rooms, others only smaller slivers. But – submitted Mr Harwood – the irrationality arises from having part of an apartment that can lawfully be lived in and other parts that cannot.

The Inspector’s remit was not confined to considering whether the Notice was a nullity on its face. Mr Harwood acknowledged that the Inspector did consider the lawfulness of the Notice by reason of this error, but submitted that he wrongly found the notice to be lawful. He submitted that there was authority which supported the justiciability of the point before the court now – namely Dill v Secretary of State for Communities and Local Government [2020] UKSC 20.

For the Secretary of State Ms Hutton’s submissions in response were two-fold.

Firstly she submitted that Ground 4 represents an impermissible attack on the rationality of the Council’s actions in commencing enforcement action, contrary to the authority of Britannia Assets (UK) Limited v Secretary of State for Communities and Local Government [2011] EWHC 1908 (Admin). That case held that, once satisfied the Notice was not a nullity, the Inspector’s duty was confined to considering whether or not any of the grounds of appeal were made out. A challenge to the lawfulness of the decision to enforce could have been raised earlier in separate proceedings in the High Court, but not now as part of this statutory appeal. The case of Dill upon which the Appellants relied does not alter the position.

Secondly Ms Hutton submitted that there is no principle of law which prevents the Council rationally from enforcing against only part of a planning unit.

For the Council Mr Henderson’s primary submission, agreeing with that of Ms Hutton, was that the complaint found in Ground 4 could not be raised with the court at this time. As part of the appeal to the Inspector the Appellants had accepted that the Notice was not a nullity, with the result that neither the Inspector nor this court has jurisdiction to entertain the complaint now (per Britannia Assets).

Issues raised by the Appellants about the Notice were purely legal arguments which did not require the exercise of the Inspector’s expert planning judgement. This relegated them to “residual grounds”, as discussed in Dill and related case-law, and they are not therefore matters for this court.

The business model, documented and explained to third parties such as the Valuation Office, included letting out the flats for a mix of long stays (above 90 days) and short stays (under 90 days). Implementing the business model would not have led to a material change of use from use class C3.

In describing the character of the uses at the Properties, the Inspector identified a number of facets of the operation which he said indicated unlawful short-term lets. But in doing so he failed to acknowledge that (a) those facets were also consistent with longer-term lets, and (b) facilities for short-term accommodation were also consistent with a class C3 use. As such he fell into error by not addressing whether a property with those characteristics was still operating within use class C3 whilst taking advantage of the 90 nights rule.

Ms Hutton submitted that the Appellants’ complaints proceed from a misreading of the Decision Letter. The Inspector’s primary finding was that the planning unit comprised the Buildings as a whole, not each separate apartment. This led him to classify the planning unit as sui generis serviced apartments for short-term lets. The Claimants’ argument before the court amounts to an attempt to run a ‘ground (c)’ appeal which was not before the Inspector.

As to the elements which the Appellants complain the Inspector ignored, the reality is that this is merely a complaint about the outcome of the appeal. The Inspector had regard to all relevant factors. The real complaint is that he did not agree with the Appellants’ characterisation of them, in particular that overall they were indicative of a class C3 use. This was a legitimate exercise of the Inspector’s planning judgement with which the court should not interfere.

Mr Henderson agreed with Ms Hutton’s submission that this ground of challenge is based on a misreading of the Decision Letter. The analysis which the Appellants sought to advance was rejected by the Inspector when he dismissed the ground (b) appeal.

On a fair reading of the Decision Letter, the Inspector plainly considered in the round all the elements of the operation which the Appellants contend he ignored. Moreover it is clear from the Decision Letter that the Inspector also considered the character of the use in the context of what was said to apply at other properties (as seen from his comment “despite Ms Mjzis’ reference to another development where that is the case …”).

In truth, submitted Mr Henderson, Ground 5 is merely an attempt to rerun the merits of the argument which failed in front of the Inspector.

All parties accepted that the challenge to the costs decision must stand or fall with the challenge to the Decision Letter. No supplementary submissions on ground 6 therefore needed to be made.

These two grounds, although pleaded separately, were closely related to one another. Ground 5 can be seen to be, at most, a sub-set of Ground 1 since they both relate to the Inspector’s conclusions on the nature of the use at the Properties. For the most part Counsel elected to make oral submissions on the two grounds together, and so I have found it convenient to address them together in my conclusions.

At the outset I make two contextual comments about the circumstances of the Notice and of the Appeal.

Firstly I consider the Council’s previous enforcement investigation in this case and the relevance (if any) that it has to the Notice which came to be served.

For the Appellants Mr Harwood does not complain about inconsistent treatment by the Council. In his oral submissions he acknowledged in terms that the termination of the Council’s prior enforcement investigation could not (for example) give rise to any estoppel arguments when enforcement action was taken subsequently. What he did submit, though, was that the previous investigation provided some context against which the current appeal should be judged.

This argument was not developed in any great detail. I am prepared to accept it at face value, although in my view it takes the Appellants’ case no further for reasons which will become apparent.

It is clear from the Planning Contravention Notice which commenced the earlier investigation that the Council’s concerns at the time related entirely to the duration of stay by occupants. That much may be seen from the email sent by the enforcement office terminating the investigation, in which she said:

“I would confirm that the Council can find no breach of the 90 day limit for short term letting being breached at the site”

Secondly, in my experience it is a feature of some appeals to this court under section 289 that they are built on shifting sands. Unsuccessful appellants against an enforcement notice may attempt either to re-constitute the arguments which failed to find favour in front of the Inspector, or else they make complaints about the lawfulness of the appeal decision based on grounds of appeal that were never advanced in front of the Inspector, or both. To a degree this is one such case.

As I have noted above, the Appellants’ appeals against the Notice were mounted initially on grounds (b), (f) and (g). The Inspector granted the Appellants some latitude by allowing a ground (d) appeal to be introduced at a very late stage despite the understandable objections of the Council. The Council takes no issue with the ground (d) appeal being allowed to be made.

But what is clear is that the Inspector was not presented with a case on ground (c). A ground (c) appeal contends that the matters specified in an enforcement do not constitute a breach of planning control even if they are found to have occurred. The Appellants conceded that there was no ground (c) appeal before the Inspector, and that concession was recorded at paragraph 3 of the Decision Letter.

Plainly, the lawfulness of the Inspector’s decision can only be viewed through the lens of the case which he was called upon to decide. The court must therefore be on alert to detect whether the challenge appeal which it is called upon to decide enlarges the scope of that considered by the Inspector. At times I consider that this is what has transpired, especially in relation Grounds 1 and 5, for reasons which I come onto consider below.

Turning to the substantive appeal, both Respondents counter the submissions made by Mr Harwood in his Ground 1 by saying that they proceed from a misreading of the Decision Letter. It is therefore important to consider what the Inspector actually decided.

The Inspector’s starting point on the Appellants’ ground (b) appeal, to which Grounds 1 and 5 of this challenge relate, was to record the following at paragraph 27 of his Decision Letter (Footnote: ⁴):

“It is common ground that the buildings have been used as serviced apartments. The substantive dispute between the parties, and the principal matter before me, is whether use as serviced apartments for short-term lets has occurred in a manner which falls outside Use Class C3, such that the use is sui generis. The evidential burden is on the appellant”

That, it seems to me, is an accurate summary of the main point of the ground (b) appeal before the Inspector. Having summarised the issue the Inspector then summarised the respective position of the Appellants and the Council, at DL31:

“Although the Council considers the use operates as a single unit, the appellants consider the use which has occurred to be the Class C3 use of each individual apartment”

I note in passing that the extract from the written Statement of Case for the Claimants in relation to the planning unit asserts:

“The Council is wrong to describe the two buildings as a single planning unit (whether this is 254-256 and 258, or the 254-256 and part of 258 in the enforcement notice). The apartments are their own individual planning units, as is usual”

After summarising the parties’ positions in the above way the Inspector went on in the Decision Letter to summarise a number of legal authorities to which he had been referred by the parties, including the cases of Gravesham Borough Council, Moore (2012) (Footnote: ⁵), Mayflower Cambridge Limited, and Commercial and Residential Property Development Company Limited, as well as the statutory provisions in s25 and s25A of the 1973 Act.

The Inspector then assessed in detail several factors concerning the use of the Properties which he considered relevant to his determination of the correct use class. His assessment of these was recorded at DL37-49. The factors ranged from how the individual apartments were laid out and appointed, the common areas in the Buildings, how the space was advertised, and the services that were offered to guests. These all seem to me to be relevant factors to assess.

The Inspector’s overall conclusions on this point are found at DL55-56, as follows:

“55.

The overall character of the use is distinguishable from a Class C3 use …

56.

On the balance of probabilities, with the evidence before me, the use that has occurred is the sui generis use of the property for serviced apartments for short term lets”

These paragraphs should also be read alongside DL63, in relation to the ground (d) appeal, where the Inspector stated as follows:

“I found above that the sui generis use as serviced apartments for short term lets had occurred. That is the case even if it occurred within apartments considered to be dwellinghouses in the Gravesham sense”

That reference to “even if …” reinforces the fact that the Inspector had dismissed the submissions for the Claimants that each individual apartment should be considered to be its own separate planning unit.

Identification of the appropriate planning unit is a question of fact and degree for the decision-maker (Burdle v Secretary of State for the Environment (1972) 1 WLR 1207). In forming a judgement about whether the Inspector’s conclusions were correct, a particular complication is that the character of uses involved in this case are, in principle, capable of a number of different classifications. A residential-type use (to employ a neutral term) could be at least use Class C3 (dwellinghouse), or C1 (hotel, boarding house or guest house), or C2 (residential institution), or C4 (house in multiple occupation), or one of at least two types of sui generis use (hostel, or serviced apartments).

An example to illustrate these complexities is the case of Rectory Homes Limited v Secretary of State for Housing Communities and Local Government [2021] PTSR. In that case, Holgate J (as he then was) considered the distinction between use classes C3 and C4, observing at [57]:

“The amended version of the C3 Use Class excludes from that class the use of a dwellinghouse by no more than six residents living together as a single household where no care is provided and the use falls within Class C4 … Class C4 applies to the use of a dwelling house by no more than six residents as a “house in multiple occupation” (as defined). Class C4 shows that Class C3 does not cover all cases in which a property has the physical characteristics of, and is used as, a dwelling house. “Dwelling house” is not a term of art confined to the C3 Use Class”

Mr Harwood placed some reliance on the case of Gravesham Borough Council v Secretary of State for the Environment (1984) 47 P&CR 142, a decision of McCullough J. Gravesham is a well-known early authority which provides guidance to decision-makers in identifying what use class any residential-type accommodation falls into. The facts of Gravesham were not comparable to the present case. The subject matter there was a single unit of accommodation. But the main point to derive from the case in relation to this ground is the fact that the use to which the property is put is a relevant factor in determining the use class.

The earlier case of Mayflower Cambridge Limited v Secretary of State for the Environment (1975) 30 P&CR 29, which considered the distinction between hotel and bed-sit uses, also acknowledged that the character of the use – for example the duration of stay – can be a differentiating factor when determining the correct use class.

The case of Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202 was closer to the facts of the present case. Enforcement action was commenced in Moore which alleged an unlawful change of use from a use class C3 dwelling to sui generis commercial leisure accommodation. Delivering the judgment of the Court of Appeal, Sullivan LJ stated at [27]:

“Starting from first principles, without the assistance of any authority, whether the use of a dwellinghouse for commercial letting as holiday accommodation amount to a material change of use will be a question of fact and degree in each case, and the answer will depend upon the particular characteristics of the use as holiday accommodation. Neither of the two extreme propositions – that using a dwellinghouse for commercial holiday lettings will always amount to a material change of use, or that use of a dwellinghouse for commercial holiday lettings can never amount to a change of use – is correct”

Finally, in Welwyn Hatfield Borough Council v Secretary of Stat5e for Communities and Local Government [2011] 2 AC 304, a case which considered the fitting out of a building permitted as a hay barn for use as a dwelling house, Lord Mance JSC (giving the leading judgment) stated (at [29]) that:

“In dealing with a subsection which speaks of “change of use of any building to use as a single dwellinghouse”, it is more appropriate to look at the matter in the round and to ask what use the building has or of what use it is”

I distil from the case-law the following propositions: (a) whether a particular use departs from that of a use class C3 dwelling is a question of fact and degree (per Moore); (b) to answer that question one needs to look at the use of the property in the round (per Welwyn Hatfield); and (c) the character of the use, and (as an example) the duration of stay, is a factor in reaching a decision but is not determinative (per Gravesham and Mayflower respectively).

Applying those principles to the facts of this case I draw the following conclusions:

Finally, in light of the submissions made by Mr Harwood I comment on two other themes.

Firstly, in view of how the Inspector has arrived at his conclusions I consider that the provisions of the 1973 Act, to which some time was devoted in argument by the parties, are a red herring. It is clear from the wording of section 25 that it applies only in circumstances where there has been a change of use from “residential premises” to temporary sleeping accommodation. But the Inspector’s finding was that the Properties never had been in use as “residential premises”, they had transitioned straight from the former use as offices to the current use as sui generis serviced apartments. That change of use bypassed the change to use class C3 and was not allowed by the permitted development rights upon which the Appellants sought to rely. The 1973 Act provisions therefore have no bearing on this appeal.

Secondly, I do not accept Mr Harwood’s argument that one can infer from the Inspector’s reference to a four-year immunity period that he had accepted the existing use was as a dwellinghouse. The Inspector was addressing the submissions made for the Appellants in the context of the ground (d) appeal. He had found that the material change of use was from offices to sui generis serviced apartments and concluded – as will be seen below from the discussion of Ground 3 below – that the appropriate immunity period was therefore ten years. His comments predicated on a four-year immunity period were, as both Ms Hutton and Mr Henderson have pointed out, addressing the alternative submissions put by the Appellants on an “even if …” basis. The context does not therefore support the inference that Mr Harwood urges.

For these reasons, Ground 1 fails.

As I have indicated above, in my judgement Ground 5 does not amount to a freestanding ground of appeal. Whatever the business model for the Properties might have been, what matters is how the Properties were in fact used. The business model represents evidence of no more than how the Properties were intended to operate. That use might have been wholly in accordance with the business model or it might have departed from the business model.

The way that the point was both pleaded and argued betrays the same misunderstanding of what the Inspector decided. It is clear that the character of use which the business model describes was considered comprehensively by the Inspector but rejected. As Mr Henderson for the Council notes, the Inspector referred directly to the evidence from Ms Mojzis for the Appellants but he did not accept it. What is being argued now is that the Inspector was wrong to characterise use and activities as described in the business model as being sui generis serviced apartments rather than class C3 dwellinghouses. That is both an impermissible attempt to reargue the merits before the court, and – in any event – resonant of a ground (c) appeal which was never actually before the Inspector.

For these reasons, Ground 5 fails.

The interpretation of an enforcement notice is clearly a matter of some importance, especially once it has been confirmed. Non-compliance with the terms of an enforcement notice is one of the rare circumstances in planning law where criminal liability attaches, along with potential supplementary measures such as Proceeds of Crime Act recoveries.

The fundamental complaint from the Appellants is that the Notice is insufficiently precise for them to know what they now have to do to comply with it. They focus in particular on the use of the phrase “short-term let” in the operative part of the Notice. As the Inspector noted at DL28, this is not a term that the Notice itself defines, nor was any applicable statutory definition for it identified by either party to the Appeals.

It is worth noting the case that was put by the Appellants and by the Council to the Inspector about how “short term lets” was to be interpreted. The Council’s position, as confirmed in its written closing submissions, was that the term should bear its “natural and ordinary meaning”. The position advanced before the Inspector by Mr Harwood for the Appellants was not that the Notice was so vague that it was incapable reasonably of being interpreted but that the Notice should bear an interpretation which, ultimately, the Inspector did not accept.

The fact that the Appellants did not try and persuade the Inspector to amend the notice to improve its clarity is telling. In Moore, Sullivan LJ commented at [42]:

“The Second Respondent contented itself with the proposition that there had been a material change of use, and the Appellant denied that such a use could amount to a material change of use of a dwellinghouse. In these circumstances we are not able to conclude that the Inspector erred in law in deciding to uphold the notice in the terms in which it was issued. He was not presented with any viable alternative which would have secured the cessation of the breach of planning control which he found to have occurred”

That comment applies equally to the facts of this case. It counts against the Appellants that the argument now made about intelligibility of the Notice is not one that was made to the Inspector. It is apt also to recall the comments of Holgate J (as he then was) in Mead Realisations v Secretary of State for Levelling Up Housing and Communities [2024] PTSR 1093, when he said (at [179]):

“The inspector cannot be criticised for acting irrationally, or for failing to give reasons, in relation to an argument of this kind which the claimant did not see fit to rely upon at any stage in its appeal”

What, then, does the Notice prevent?

The parties accepted that the Notice should be interpreted within the four corners of what it says (applying, by analogy with the interpretation of a planning condition, the judgment of Lord Hodge JSC in DB Symmetry Limited v Swindon Borough Council [2023] 1 WLR 198 at [66]).

Mr Harwood built his arguments around how “short term” may translate to a period above or below the 90-day threshold in the 1973 Act. For this approach he relied on the judgment of Ward LJ in Fairstate Limited v First Secretary of State [2005] EWCA Civ 283 at [5]. But in my view that reliance is misplaced. It is clear from the context that Ward LJ was not seeking to assert a general interpretation of “short-term” by reference to 90 days but that he was only doing so as a short-hand for the purposes of that particular judgment.

The Notice does not refer to 90 days. For the reasons I have given above in relation to Ground 1, I consider that the 90-day period in the 1973 Act is in any event an unnecessary distraction in this case. The Inspector did not conclude that there had been a material of change of use from use class C3 residential to temporary sleeping accommodation, but that there had been a material change of use straight from offices to sui generis serviced apartments. The Notice is requiring a cessation of use as serviced apartments. The additional reference to “short-term lets” is perhaps an unnecessary gloss but it does not diminish the clear and obvious import of the Notice, that the Appellants do not have planning permission to use the Properties as serviced apartments and therefore they should stop doing do.

Whilst it is right to note that the distinction between serviced apartments and class C3 dwellinghouses may not always be easy to discern, that does not result in any unwelcome complexity in this case. The Inspector has clearly identified and articulated the elements of the operation here which led him to conclude that the use was as serviced apartments. These have to cease. Whilst strictly a reversion to an acknowledged class C3 dwellinghouse use would not contravene the Notice (which only requires the cessation of use as serviced apartments), that is not to say that such a reversion would be lawful in planning terms. It would not be. As Mr Henderson for the Council pointed out, the only lawful use to which the Properties could return is a use as offices (by virtue of section 57(4) of the 1990 Act).

For these reasons Ground 2 fails.

As I see it there are two limbs to consider in relation to this ground:

The ground (d) appeal made to the Inspector (recorded by him at DL59) was that, even if the serviced apartments use was not a use falling within Use Class C3, it was nevertheless a “dwellinghouse” use. If that proposition were accepted then it followed that – per s171B(2) of the 1990 Act – the relevant immunity period would be 4 years and (the Appellants submitted) the use had become immune from enforcement action. But, implicitly, this proposition was not accepted.

On his Ground 3, Mr Harwood’s skeleton argument began with the assertion that “The Inspector found that the change of use was to a dwellinghouse use and that the four year time limit applied [DL58-69]”. As will be apparent from what I have already said, that submission is unsustainable.

The Inspector restated his conclusions on the use at DL63: “I found above that sui generis use as serviced apartments for short term lets had occurred”. That the Inspector then went on, in DL63, to add: “That is the case even if it occurred within apartments considered to be dwellinghouses in the Gravesham sense” is an unnecessary gloss, but is a response to the supplementary submission of the Appellants that the 4-year immunity period, which it asserted should apply, had been met.

If there is a complication with reading the Decision Letter on this point, it arises from the fact that the Inspector never actually states that – by reason of his conclusions on use – the immunity period would be 10 years. That is the logical consequence of his finding that the use of the Properties was something other than a dwellinghouse, because this would engage s.171B(3) rather than s.171B(2) (resulting in a 10-year period rather than a 4-year period). But instead the Inspector appears to have considered only whether the 4-year immunity period was met. This, it seems, was because he was responding to the case put by the Appellants. The Inspector found that even a 4-year immunity period had not been met, and so the outcome was the same as if he had applied a 10-year immunity period and he had not needed to engage with the arguments regarding the point in time at which the use began and whether there were fallow periods of use during the period which served to break the chain of use leading to immunity.

To the extent that the Inspector made a mistake, therefore, it is not on its face a mistake that assists the Appellants. This is because – as Mr Harwood conceded in his skeleton argument – “… it was common ground that the use had commenced less than 10 years ago”.

I have dismissed the Appellants’ Ground 1, which challenged the Inspector’s conclusion on the relevant use class applying to the use of the Properties. By reason of the above, therefore, the Appellants’ Ground 3 could only be sustained if – in light of that conclusion by the Inspector – the correct immunity period applying to the sui generis use as serviced apartments is nevertheless 4 years rather than 10 years.

In my view it is unarguable that, having reached what I have found to be a sound conclusion that the use of the Properties was as sui generis serviced apartments, the immunity period can be anything other than 10 years. Where material changes of use are concerned, s171B(2) provides the exception to the general rule in s171B(3) that the immunity period is 10 years not 4 years. S171B(2) is confined to cases of “a breach of planning control consisting in the change of use of any building to use as a single dwelling house”. Those are not the facts of this case.

It is not wholly clear that the Inspector did indeed make the error of assuming that the immunity period was 4 years rather than 10 years. The Decision Letter could be explained equally as the Inspector assessing and dismissing, on an “even if …” basis, the argument made by the Appellants that a 4-year immunity period was satisfied. But even if that mistake were made it is clear that the outcome of the appeal would inevitably have been the same, and so any relief would be withheld (per Simplex GE Holdings v Secretary of State [1989] 57 P&CR 306). This follows irrefutably from, amongst other things, the concession from the Appellants that a 10-year immunity period would not be satisfied.

It follows from this that Ground 3 fails. Having reached this conclusion based on the correct immunity period it is unnecessary for me explore the submissions of the parties as to whether, on the evidence, the Inspector was right to have concluded that a 4-year immunity period was not met either.

This ground relates to the approach of the Council – acknowledged to be an error – of drawing the red line for the Notice based on an incomplete set of the Land Registry title plans for the Properties. This had the effect of excluding all of 260-262 Belsize Road and parts of 258 Belsize Road.

The basis of the Appellants’ complaint under this ground relates to the effect of the Council’s error when viewed from the interior of the Buildings. Because the plan attached to the Notice paid no regard to the internal layout of the flats within the Buildings, the effect of the Notice ignored the internal configuration of individual areas of occupation. This meant, as Mr Harwood submitted, that some flats were bisected and lost a large amount of their liveable area, others lost a smaller area, some were wholly included in the Notice, and some were wholly outside it.

The Inspector was made aware of the error and of its implications (DL8). He recorded that the Council asked him for the error to be corrected but he rejected this request (ibid.).

The essence of the Appellant’s Ground 4 is captured in this extract from Mr Harwood’s skeleton argument:

“… it is irrational to have an enforcement notice where part of a flat can be lived in, but living in the other part is a criminal offence, when the flat had been constructed and used as a whole. No rational public authority, having regard to the law and the facts, would make or continue in force an enforcement notice which had that effect”

The Secretary of State and the Council both resist this ground on two alternative bases; firstly, that the Appellants are precluded from raising a rationality ground as part of an appeal to the Inspector (and hence as part of an appeal to this court under s289), and secondly, that the Council’s approach is not irrational in any event.

As to the first contention, both defending parties rely on the case of Britannia Assets (UK) Limited v Secretary of State for Communities and Local Government [2011] EWHC 1908 (Admin).

Britannia Assets concerned an enforcement notice served against a landowner for developing a trading estate on a site formerly used for the storage and distribution of fuel. The challenge heard by the court included a complaint that the enforcement notice had been served unlawfully by the local planning authority. Wyn Williams J held that, other than in cases where it was alleged that the enforcement notice was a nullity, the appeal inspector’s consideration must be confined to the grounds of appeal that could be brought under s174. At [26] of his judgment he observed:

“[Counsel for the appellant] Mr Horton submits that it is commonly the case that points about the validity of an enforcement notice are taken before an Inspector on an appeal under section 174 of the Act even though such points do not fit within the language of section 174. He points out that in this case, for example, a point was taken on behalf of the Appellant that notice A was a nullity. The Inspector determined that point even though there is no ground of appeal under section 174 of the Act which suggests that an Inspector can be asked to determine whether or not an enforcement notice is a nullity. Mr Horton submits that I should be slow to decide the point in issue in this ground of challenge in such a way that undermines a practice which is settled and can be justified by reference to sound practical considerations”

In his judgment, Wyn Williams J then went on to consider the case of R v Wicks [1998] AC 92. Wicks concerned a prosecution for failure to comply with the terms of an enforcement notice. In his defence to the prosecution the defendant sought to rely on an argument that the local authority had acted in bad faith when taking the enforcement action against him. Dismissing his appeal, the House of Lords held that – in the case of the planning legislation – unless the notice in question were held to be a nullity, any arguments about the steps which led to it being served were legally irrelevant at the point of a prosecution for breach.

In Britannia Assets, analysing the judgment of Lord Hoffmann in Wicks, Wyn William held (at [30] and [32]-[33]) as follows:

“30.

In the light of the analysis in Wicks an enforcement notice which is a nullity on the grounds that its terms are uncertain or that it fails to comply with the requirements of the Act is not an enforcement notice at all. Inevitably, therefore, from time to time an Inspector has to grapple with the issue of whether a notice is a nullity since, if it is, it has no legal existence and an Inspector has no jurisdiction to consider the merits of the appeal against the notice.

…

32.

For my part, therefore, I can see good reasons why there will be cases from time to time in which an Inspector is bound to consider whether an enforcement notice is a nullity as a means of determining the extent of his jurisdiction.

33.

However, in my judgment once an Inspector determines that the notice is not a nullity (if that point is raised) his jurisdiction is governed by the terms of section 174 read in conjunction with section 176 of the Act. This conclusion is consistent with the recent decision in Gazelle Properties …”

The reference to Gazelle Properties is to the case of Gazelle Properties Ltd v Bath and North East Somerset Council [2010] EWHC 3127 (Admin). In that case, Lindblom J (as he then was) held that there were some complaints about an enforcement notice which could be raised by way of a judicial review against the notice, but that the subject matter of these complaints did not overlap with the appraisal of planning merits which formed part of an appeal under any of the grounds in section 174. He held (at [55] and [57]) with reference to Wicks:

“55.

But, as Lord Hoffmann emphasised, the deliberate inclusion by Parliament of the words “on any of the grounds on which such an appeal may be brought” in the preclusive provision in section 285(1) is recognition of the fact that there is a category of challenge to an enforcement notice which is not within the ambit of section 174. The specific grounds in section 174 are for decision-makers on appeals, not for the courts. This much is effectively acknowledged in the statutory code itself. Where the line is to be drawn between the statutory grounds and the residual category is for the court to determine. And the court has been cautious in drawing that line no further than the traditional boundaries of judicial review …

…

57.

… In my view Mr Towler was right to acknowledge, without conceding their merit, that there are some matters raised in the present claim which are susceptible to judicial review. Those matters are clearly to be distinguished from the appraisal of planning merit required by an appeal on ground (a) in section 174(2) (which is equivalent to the task facing an authority dealing with an application under section 70), from the fact-finding exercise entailed in considering an appeal on ground (b), (c), (d) or (e), and from the judgments called for by an appeal on ground (f) or (g). So to conclude is, I believe, wholly consistent with the principles to which I have referred in Wicks …”

The final case which I must consider is that of Dill v Secretary of State for Housing, Communities and Local Government [2020] 1 WLR 2206, which Mr Harwood cites in support of his argument that the inspector was right to conclude that the question of the lawfulness of the Notice was within his jurisdiction (but wrong to conclude on the facts that it was lawful).

Dill involved an appeal against a listed building enforcement notice. Under the relevant listed building legislation, enforcement action could only be taken in respect of unauthorised works undertaken to “a building”. In this instance the works complained of were the removal of two lead urns which sat on the limestone piers of a Grade II listed building and which were included in the listing particulars. The appellant argued that the urns were not “buildings” within the meaning of the legislation and that, as such, enforcement action could not be taken against him for their removal. He was unsuccessful at appeal and in the High Court and the Court of Appeal, but the Supreme Court allowed his appeal.

The facts of Dill are not directly comparable with the present case. Giving the only judgment in the Supreme Court, Lord Carnwath considered the case of Wicks. Having also considered the requirements of article 6 of the European Convention on Human Rights, Lord Carnwath held as follows (at [20] and [22]):

“20.

… However, as Mr Elvin also correctly submits, that principle [i.e. article 6] needs to be read in the context of the particular statutory scheme in question (citing Lord Hoffmann in R v Wicks [1998] AC 92, 117B). In the present scheme, he submits, identification as a "building" is not one of the matters that can be questioned through the statutory appeal route; but the right to challenge the validity of the listing by judicial review provides the fair opportunity required by the principle.

21.

Wicks is of particular relevance because it arose under the parallel enforcement provisions for breach of planning control. It concerned a prosecution for failure to comply with an enforcement notice for breach of planning control under the Town and Country Planning Acts. The relevant statute had a provision (in similar terms to section 64 of the Listed Buildings Act: see para 19 above) excluding challenges to the validity of an enforcement notice other than by the statutory appeal procedure. It was held that on a proper construction of the relevant provisions all that was required to be proved in the criminal proceedings for breach of an enforcement notice was that the enforcement notice issued by the local planning authority was formally valid, and that it was not open to the defendant to raise other public law challenges to its validity, such as bad faith, bias or procedural impropriety ("residual grounds"), by way of defence to the charge.

22.

In my view that authority if anything supports the appellant's case. There was no issue but that the enforcement appeal could encompass every aspect of the planning case”

I agree with both Ms Hutton and Mr Henderson that Dill does not support the Appellants’ case here. I say so for the following reasons.

Firstly, although it does not have a direct parallel in a conventional planning enforcement case (as opposed to listed building enforcement action), were the Appellants to be faced with a similar allegation here they would have been able to include the denial presented by Mr Dill as part of a ground (d) appeal under section 174 (namely that the matters complained of in the enforcement notice did not constitute a breach of planning control because – to borrow from the facts of Dill – the urns were not a “building” to which an enforcement notice could have attached in the first place). It follows from this that the Dill argument under section 174 would not have comprised one of the “residual matters” identified by Lord Hoffmann as being incapable of resistance through a ground of appeal.

Secondly, I agree with Ms Hutton for the Secretary of State that there is nothing incompatible between the principles established in Wicks and in Dill. Both confirmed that (a) a complaint against an enforcement which did not fall within any of the statutory grounds of appeal for such a notice could still be raised through a judicial review challenge against the notice in question, but (b) a complaint which did fall within a statutory ground of appeal must be raised as such, and not separately through a statutory appeal to this court after the appeal decision has been issued. This latter proposition also reflects the preclusive provisions of s285 of the 1990 Act.

Thirdly, applying the facts of the present case to the principles confirmed in Wicks and Dill, an allegation of “irrationality” in the service of the Notice was not a complaint which fits within any of the statutory grounds of appeal under section 174. As such it could only have been advanced as a judicial review against the Notice. No such challenge was brought. The present proceedings are not framed as such, nor could they now be given the passage of time since the Notice was issued in 2024 and the fact that an appeal against it has been fully argued and dismissed since then.

It follows that, as both Ms Hutton and Mr Henderson submitted, the court has no jurisdiction to entertain the Appellants’ complaint about “irrationality”.

Even if I am wrong about that, I do not consider that the complaint of irrationality can be sustained in any event. I say that for the following reasons:

It follows that, for these reasons, Ground 4 fails.

As I have noted above, all parties agreed that the challenge to the Costs Decision Letter is parasitic on the challenge to the Decision Letter.

I have dismissed all grounds of challenge against the Decision Letter, and with that the challenge to the costs award must also therefore fail.

For the reasons given above, all grounds are dismissed.

I now invite the parties to agree an appropriate form of Order consequent upon my judgment.