City of Westminster v Davenport & Anor

On 14 and 15 July 2010, I heard an application, made by Ms Sheikh on behalf of Westminster City Council against Edward Davenport and persons unknown, for an injunction under the provisions of s.187B of the Town and Country Planning Act 1990. What is sought in effect is the continuance on a permanent basis of an interim order granted on 13 January 2010 by His Honour Judge Seymour QC, sitting as a Judge of the High Court. It was not appealed, but I am now asked by Mr Davenport to discharge it.

Although there appear from the witness statements to be a number of factual disputes, the claim is brought under CPR Part 8, since that is specifically required by the rules: see CPR Part 8 Practice Direction 9.1. Ms Sheikh submits that there is nothing surprising about that because it reflects the approach to be taken by the court on such claims in the light of long established legislative and judicial policy. It is generally inappropriate for the court to second-guess assessments made by the relevant planning authority on the factors which have led to its decision to seek injunctive relief, such as whether there have been or are likely to be breaches of planning control and whether planning harm has resulted. Reference was made to the well known words of Simon Brown LJ (as he then was), as approved by the House of Lords, in South Bucks District Council v Porter [2003] 2 AC 558 at [53]:

“It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being given when he comes to exercise his discretion … ”

The claim concerns activities at No 33 Portland Place, London W1, which are described at length in the witness statements submitted by the Council from Mr Roald Piper, a “team leader” from its planning department. The premises are owned by a company, Portland Place (Historic House) Ltd, which is not a party to these proceedings. They are occupied, although by no means permanently, by Mr Davenport. At the time of the January hearing, he was in prison and thus hampered in his ability to take effective steps to defend himself. Subsequently he has been released on bail and put witness statements before the court from himself (eventually four in number) and others, in which his case is fully set out.

The Council regards it as necessary to claim an injunction to prevent breaches of planning control because, on its case, there has for a number of years been persistent use of parts of the premises for commercial activities, whereas the only authorised use is residential. It is claimed that Mr Davenport has authorised these activities and/or has it within his power to prevent them.

So far as material, the injunction granted in January was to this effect:

“The Defendants are forbidden:

(i)

from using any part of the Property known as 33 Portland Place, London W1B 1QE (‘the Property’) as shown outlined in black on the attached plan for any commercial or non-residential purposes.

(ii)

from undertaking any development in respect of the Property as defined in section 55 of the Town and Country Planning Act 1990 without the express grant of planning permission. … ”

Ms Sheikh contends that the Defendants, in putting forward their case, are not permitted to question or to seek to go behind an enforcement notice dated 14 June 2006, which was duly served and came into effect on 25 July and required compliance by 25 August of that year. The Council produced a contemporaneous record showing that the persons served were the “owner” and the “occupier”, both at the premises in question; the company secretary of the corporate owner at an address in Godalming; and HSBC Private Bank (Monaco) SA in Monaco. It is said that Mr Davenport was in Monaco at the material time, but that would not undermine the effectiveness of the notice.

It was not challenged by the statutory appeal process on any of the grounds available under s.174 of the Act. It would be open to a recipient to argue at that stage, for example, that the matters relied upon did not constitute a breach of planning control or that at the material time no enforcement action could lawfully be taken (because, for example, a material change of use had occurred more than 10 years prior to the date of the notice and had thus become “immune”). There was no such appeal, however, and Ms Sheikh accordingly submits that it is not open to the Defendants now to take such points in these proceedings. She placed great emphasis on the provisions of s.285 of the Act to the effect that the validity of an enforcement notice shall not be questioned in any proceedings whatsoever on any of the grounds on which an appeal could have been brought.

It was also pointed out that no advantage was taken of s.176 of the Act, which enables defects in such a notice to be corrected or its terms to be varied.

It is clearly important for the court to have regard to the contents of the enforcement notice itself, in so far as these are material for present purposes:

“1.

THIS FORMAL NOTICE is issued by the Council because it appears to them that there has been a breach of planning control, under Section 171A(1)(b) of the above Act, at the land described below. The Council considers that it is expedient to issue this notice, having regard to the provisions of the development plan and to other material planning considerations.

2.

THE LAND AFFECTED

The building and associated land at 33 Portland Place W1B 1QE shown edged with a thick black line on the attached plan.

3.

THE BREACH OF PLANNING CONTROL ALLEGED

On 14^th July 1960 planning permission was granted for the use of no. 33 Portland Place, St Marylebone for diplomatic purposes by the Commissioner of the Governments of Sierra Leone and Gambia subject to conditions.

One of those conditions was Condition 2 which states:

‘This permission shall be personal to the Commissioner of the Governments of Sierra Leone and Gambia and shall not enure for the benefit of the land and in the event of the Commissioner ceasing to use the premises for diplomatic purposes the premises shall not be used for any other purpose than for residential purposes or such other purpose as shall have been previously approved by the Council.’

It appears to the Council that this condition has not been complied with because the premises are being used for a range of commercial and other non-residential activities in breach of this condition.

4.

REASONS FOR ISSUING THIS NOTICE

It appears to the Council that the above breach of planning control has occurred within the last ten years.

The use of the premises for commercial and non-residential activities results in a loss of housing to other uses and impacts on neighbouring residential amenity to an unacceptable degree.

As such, the uses are contrary to policies Stra 11, H1 and H10 of the City of Westminster Unitary Development Plan adopted 1997 and policies Stra 14, Stra 16, H1 and Env 13 of the Replacement Unitary Development Plan.

5.

WHAT YOU ARE REQUIRED TO DO

Stop using the property for commercial and other non-residential uses and use it only for residential purposes in accordance with condition 2 of the planning permission dated 14^th July 1960.

TIME FOR COMPLIANCE:

One month after this notice takes effect … ”

This had been served following the recommendation contained in a report dated 22 March 2006 from the Director of Legal and Administrative Services. It identified various material changes of use as follows:

Ms Sheikh argues that the various planning assessments or conclusions contained in the enforcement notice are not now capable of challenge. In the words of Lord Hoffmann, “The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it”: see R v Wicks [1998] AC 92, 121F.

Mr Lopez, instructed on behalf of Mr Davenport, has submitted that the enforcement notice is actually a nullity and thus tantamount to “waste paper”, as it was put in Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196, 226, and R v Wicks, cited above. Indeed, in his skeleton argument he raised for the first time the suggestion that I should grant a declaration to that effect. Ms Sheikh took the procedural point that permission is required for a counterclaim to be made in Part 8 proceedings of this kind. On the other hand, if Mr Lopez wishes to claim that the enforcement notice was a nullity by way of defending the claim for an injunction, his points could, of course, be raised in that context. It is thus important to focus on the substance of the argument.

Ms Sheikh submits that the critical question is whether the enforcement notice can be shown to be bad on its face. For this purpose, she suggests that the appropriate test is to be found in s.173 of the Act which contains the following provisions:

“(1)

An enforcement notice shall state –

(a)

the matters which appear to the local planning authority to constitute the breach of planning control; and

(b)

the paragraph of section 171A(1) within which, in the opinion of the authority, the breach falls.

(2)

A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.

(3)

An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4)

Those purposes are –

(a)

remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b)

remedying any injury to amenity which has been caused by the breach.

(5)

An enforcement notice may, for example, require –

(a)

the alteration or removal of any buildings or works;

(b)

the carrying out of any building or other operations;

(c)

any activity on the land not to be carried on except to the extent specified in the notice; … ”

It is well known that there has, over the years, been a troublesome tension between ensuring, on the one hand, that an enforcement notice contains all the material required by the statute in sufficient detail to make clear what is alleged and what is required and, on the other hand, ensuring that proper enforcement action is not hindered by what Ms Sheikh referred to as “pettifogging”; that is to say, unduly technical or unmeritorious points of law. Reference was made several times in the course of counsel’s submissions to the case of Miller-Mead, cited above, and to the test identified by Upjohn LJ (as he then was); namely, whether the notice tells the recipient fairly what he has done wrong and what he must do to remedy it.

An example of a finding of nullity is to be found in the judgment of Wyn Williams QC (as he then was) in Payne v The National Assembly for Wales [2006] EWHC 597 (Admin) in January 2006. What went wrong in that case was that the notice in question did not make clear to the recipient what was required of him. The steps he was supposed to take were unclear and apparently involved his submitting an application to be resolved by the local authority. Ms Sheikh invites me to conclude that the enforcement notice in this case, quoted above, does not suffer from the same vice or anything comparable. It makes clear to any recipient that only residential use is permitted unless planning permission has been granted for some different use. It is true that the condition imposed in 1960 would appear to be irrelevant. It would have lapsed when the personal permission granted to the Commissioner came to an end in 1999. It could have no independent existence of its own. It was simply a part of the planning history of the premises. Nonetheless, the Council’s case was made clearly enough; to the effect that, unless permission were granted otherwise, only residential use was permitted. The reference to the 1960 condition may be thought to be inaccurate but superfluous.

I need to bear in mind the words of Upjohn LJ in Miller-Mead at p.226:

“Now, I think, is the time to draw the distinction between invalidity and nullity. For example, supposing development without permission is alleged and it is found that no permission is required or that, contrary to the allegation in the notice, it is established that in fact the conditions in the planning permission have been complied with, then the notice may be quashed under section 23(4)(a) [of the 1960 Act]. The notice is invalid: it is not a nullity because on the face of it it appears to be good and it is only on proof of facts aliunde that the notice is shown to be bad: the notice is invalid and, therefore, it may be quashed. But supposing the notice on the face of it fails to specify some period required by subsection (2) or (3). On the face of it the notice does not comply with the section; it is a nullity and is so much waste paper. No power was given to the justices to quash in such circumstances, for it was quite unnecessary. The notice on its face is bad. Supposing then upon its true construction the notice was hopelessly ambiguous and uncertain, so that the owner or occupier could not tell in what respect it was alleged that he had developed the land without permission or in what respect it was alleged that he failed to comply with a condition or, again, that he could not tell with reasonable certainty what steps he had to take to remedy the alleged breaches. The notice would be bad on its face and a nullity, the justices had no jurisdiction to quash it, for it was unnecessary to give them that power, but this court could, upon application to it, declare that the notice was a nullity. That to my mind is the distinction between invalidity and nullity.”

Ms Sheikh argues that the criticisms levelled by Mr Lopez at the content of the enforcement notice go not to nullity but rather to its supposed invalidity; and that his attacks inevitably, therefore, would run up against the restrictions contained in s.285 – in the sense that his criticisms could have been made, within the appropriate time limits, by way of appeal under s.174. He expressly disavows, however, that he takes any point on validity – as opposed to nullity.

In this case, Ms Sheikh takes her stand squarely on the service of the enforcement notice four years ago. It is well known that such a notice can be critical in determining rights. My attention was drawn to the words of Keene LJ in Staffordshire County Council v Challinor [2007] EWCA Civ 864 at [47]:

“It is an over-simplification and a misinterpretation of the authorities to contend that an enforcement notice cannot take away lawful use rights. It patently can have that effect in certain circumstances, and that is the undoubted result of section 285(1). Even in the absence of a CLU, a use which is within the existing use rights enjoyed by a piece of land is a lawful use: section 191(2) expressly provides that the use is lawful if it is immune from enforcement action because of the passage of time. Yet it has long been established that such lawful rights will be lost if an enforcement notice is served and the rights are not then raised as a ground of appeal. That is the result of section 285(1) and is recognised in cases such as R v Smith (Thomas George) [1985] JPL 182 and the Vale of the White Horse District Council case (ante). In the latter, the Divisional Court found that the magistrates had been wrong in law in permitting a defendant to a prosecution to lead evidence to show that the land had been used for the purpose enforced against for a period in excess of 10 years prior to the issue of the enforcement notice. Section 285(1) prohibited any such course being adopted: see Otton LJ at page 667, applying the Smith case.”

He added a little further on at [52]:

“In short, what this line of cases indicates is that an enforcement notice will be interpreted so as not to interfere with permitted development rights under the General Development Permitted Order or with rights to use land for a purpose ancillary to a principal use which is itself not being enforced against. The authorities go no further than that and certainly do not establish any general right to assert existing use rights at a time when the enforcement notice has come into effect after an unsuccessful appeal or in the absence of an appeal. Such rights must be asserted at the time of appeal against the enforcement notice. If the landowner sleeps on those rights, he will lose them. There is a sound practical reason for this, in that any other course would require the courts, including magistrates courts, to delve into the planning history of a site and into the use made of it over a number of years.”

In the light of these authorities, Mr Lopez places considerable weight on the argument that such activities as have been carried out at the premises, prior to the service of the enforcement notice and subsequently, are no more than “ancillary to a principal use which is itself not being enforced against” (i.e. in this instance use for residential purposes).

I pause at this point to state my conclusion that the enforcement notice in this case is not a nullity. It cannot be equated with “waste paper” and it fulfils the criteria identified by Upjohn LJ, as followed regularly in subsequent cases.

I must, therefore, address the remaining arguments of Mr Lopez and, in each case, where appropriate, make an assessment of whether the particular point falls foul of s.285. Is it, in other words, a point that should have been taken (if at all) following service of the enforcement notice by way of a ground available under s.174?

It is said, first, that no actual or apprehended breach of planning control has been correctly identified and/or properly assessed by the Council. It is to this issue that the witness statements are primarily directed.

Mr Piper in his first witness statement ventured briefly into the planning history of the premises. He referred to the planning permission granted in 1960, which appears to have been personal to the Commissioner of the Government of Sierra Leone and Gambia, and to the second condition imposed at that time; that it to say, to the effect that if the Commissioner ceased to use the premises for diplomatic purposes, they were not to be used for any other purpose than residential or for such other purpose as shall have previously been approved by the Council. It seems that the premises ceased to be used by the Commissioner in or about 1999. It is Mr Piper’s case that, since at no stage had any other purpose been approved by the Council, the only authorised use was thereafter residential. He explained that the reasons why the conditions had been imposed in 1960 were (a) to safeguard the existing residential accommodation in accordance with the Council’s Development Plan and (b) to protect the existing residential accommodation in the vicinity. He added that the Council had been concerned about the loss of the residential elements within the property: that is why the permission granted in 1960 had been personal to the Commissioner. The intention clearly was that it should revert, on his departure, to purely residential use. My attention was drawn to the provisions of s.57(2) of the 1990 Act:

“Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at that end of that period, of its use for the purpose for which it was normally used before the permission was granted.”

Mr Lopez referred to letters emanating from the Council’s planning department which, he suggests, indicate a state of confusion or ignorance on its part as to the planning status of the property at the time. The opinion was expressed, for example, on 1 March 1999 by the then Acting Director of Environment and Planning that proposed use of the basement as a visa office, and of the ground floor as an office for the High Commissioner, would be within the terms of the 1960 permission. On the other hand, his view was that general use of the remainder of the building would require planning permission (which was unlikely to be granted because of the high priority accorded by the Council to protecting residential accommodation).

Further, on 9 July 1999, the same person expressed the opinion that once the Commissioner left, “the building would normally have a nil use in planning terms”. Nonetheless, he considered that the condition attached to the 1960 permission would permit the residential use of the building. He was unable to confirm this as, at that point, the Council’s records were unclear. In the light of this, he suggested that the position might be regularised by an application for planning permission.

On 10 July 2000, the Director of Planning and Transportation wrote that use as a single family dwelling might be acceptable but cited the Council’s policy ECON 6B:

“In the Portland Place Special Policy Area, planning permission will normally be granted for use for diplomatic and allied uses, the headquarters of professional, cultural, charitable and learned institutions, associations and trade federations subject to other relevant policies, but permission for developments which displace these specific uses will not normally be granted.”

It was therefore said that it would be necessary to show why the building was not required for diplomatic use and that there was no demand for other special policy area uses.

Ms Sheikh’s response to these letters was, effectively, “so what?” She invited me to discount personal opinions expressed by a Council employee, albeit one who occupied a responsible position at the time, as having no standing sufficient to bear upon the planning status of the building. She also referred in this context to the case of Regina (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348 for the proposition that the private law concept of estoppel should not be transposed into the public law context of planning control. In any event, time has moved on and the court should focus primarily on the enforcement notice of 2006. My conclusion is that these letters do not assist my task. It can, in any event, be said that they do not in themselves provide any support for an authorised use of the premises for commercial purposes up to 1999.

According to Mr Piper, the Council obtained evidence between 2001 and 2006 to the effect that the property had been utilised on some occasions, and to some extent, for the purpose of commercial events. Warning letters were ignored and therefore the enforcement notice of 14 June 2006 was issued.

The effect of the enforcement notice, since it was not appealed, was to crystallise the position at that time, so that the only authorised use was indeed residential. It is to be noted, moreover, that in the four years intervening no application has been made to the Council for planning permission to use the premises, or any part of them, for purposes other than residential. Mr Piper has confirmed that the Defendants had been told by the Council that they remained at liberty to submit an application either for change of use or for a certificate of lawfulness for any existing or proposed use of the property.

Mr Piper sets out a fairly detailed history, from paragraph 8 of his witness statement onwards, as to the information received by the Council and enquiries made by it into the activities carried on at the address. It does not seem to me to be necessary for the purposes of the present proceedings to recite that history in detail. It will suffice to give a general summary.

The evidence refers on a number of occasions to information having been received from local residents as to what had been going on at the property and, in particular, as to noise and other interference with amenity. Mr Lopez takes a general point to the effect that little or no weight should be attached to information from unidentified residents because it is hearsay and cannot be tested. In some cases, however, officers of the Council have gone to the premises in order to check for themselves or carried out other enquiries by reference to what has appeared, for example, on the Internet or in the press.

Furthermore, where evidence is relied upon by the Council in terms specific enough to identify the dates and/or the nature of the activities complained of, Mr Davenport has been fully entitled to adduce evidence from himself or other people for the purpose of either refuting the Council’s evidence or, where he disagrees with the Council’s version, to give an alternative explanation of what took place.

In these circumstances, it would not be right to take a blanket approach to any particular category of evidence. Each incident relied upon by the Council must be assessed in the light of all the relevant evidence available.

A principal bone of contention between the parties is whether or not the evidence adduced by the Council would establish change of use at all and, in particular, change from residential to commercial use. It is said that it is all consistent with activities or events taking place that are ancillary to the residential use, against which the Council obviously does not seek to enforce. Mr Davenport has introduced evidence of a historical nature tending to show that throughout its history, from the late 18^th century onwards, the building has regularly been used for entertaining and social events, sometimes on a very grand scale consistent with the size and nature of the building. One does not require evidence, however, to establish the simple proposition that a certain amount of entertaining and party-giving would be naturally incidental to occupation of property for residential purposes. What is more significant in the present context is the extent to which parts of the property have been let out for use by third parties in exchange for payment. As I understand Mr Lopez’ argument, it is to the effect that the hiring out of one’s home, or part of it, can be consistent with and ancillary to ordinary residential use. To show a change of use, he submits, it would be necessary to demonstrate precisely where in the building, how frequently and on what scale such events were taking place.

Furthermore, Mr Lopez suggests that it is not sufficient for the Council to point to advertisements on, for example, matchboxes or business cards, or on the Internet, as to the availability of the premises for hire. He says that advertisements represent no more than aspirations and would not necessarily signify an actual change of use.

A particular instance is given by Mr Piper, relating to an email received from a local resident on 20 November 2006. There were photographs showing a matchbox found outside his property saying on one side “33 Portland Place W1” and on the other “020 7636 0900 Historic house available for hire info@33portlandplace.com”. These were exhibited.

It seems that in September 2006 a representative of Mr Davenport was pressing his case in correspondence, to the effect that he should be allowed to hold 12 commercial parties and 28 days of filming in a year; alternatively, 12 commercial parties and 50 commercial filming events. The response of the Director of Legal Services was that any such use would constitute a breach of the enforcement notice and thus a criminal offence contrary to s.179 of the 1990 Act. Despite this, there were during the autumn of that year reports of commercial events continuing to take place and the Council was able to confirm that the premises were being advertised, by different companies using different website addresses, as being available for hire for Christmas parties, receptions and the like. Complaints were received from time to time of excessive noise. Mr Lopez suggested that I should discount these as unreliable and quite possibly malicious. It was not clear, however, that there was any evidential basis for this charge.

On or about 4 December 2006, a conversation took place between Mr Davenport and Mr Piper, during which Mr Davenport expressed the view that the Council was being unfair not to allow him to use parts of his property for filming. He also denied that people were advertising the property for Christmas parties and other commercial purposes, stating that all companies which had been advertising his property had been requested to stop doing so once the enforcement notice had been served. Part of his complaint was, according to Mr Piper, that the Council’s unfair restriction on using parts of the property for filming had already cost him around £100,000. This would appear entirely consistent with a wish and intention on his part to use at least parts of the building for commercial purposes. Moreover, Mr Piper himself noticed on that occasion, which had been an unscheduled site visit, that some sort of film shoot was occurring on the first floor level.

Following the site meeting, Mr Davenport was informed by a letter of 8 December 2006 from the Director of Legal Services that preparations were under way for an application to the court for an injunction but that, in the light of the assurances he had given, this course of action was not to be pursued for the time being.

A further complaint was received by the Council on 19 January 2007 of a noisy event having taken place the night before and continuing into the small hours. The same day, a letter arrived from Mr Davenport’s representative suggesting the use of part of the premises (less than 25% of floor space) for up to 21 days of filming events during the year. A site visit on 22 January confirmed that a photographic shoot was taking place on that occasion. The Council’s response was that an application could be made for planning permission, or a certificate of lawful use, but that in the meantime there was no reason why the Council should not continue to press for compliance with the terms of the outstanding enforcement notice.

Further complaints were received of a large-scale and noisy event having taken place on 19 May 2007. An unannounced site visit on 12 June of that year showed that in front of the property there were cages containing cabling, together with recording and filming equipment. There were also sounds coming from a band inside the property. Another matchbox was found outside carrying the same advertisement as that referred to above. Mr Davenport appeared and refused access to the Council’s representatives. Mr Piper has stated that he at first denied that the rock band was present and then later claimed that it was for his own non-commercial purposes.

Further complaints were received that month of an event taking place on 22 June, with caterers and a doorman placed at the entrance, and of a day’s filming on 20 June.

It was admitted on 26 June by Harper’s Bazaar magazine that a photo shoot had taken place at the premises for which they had paid a fee. The picture editor, Ms Charlotte Schmidt, confirmed in an email to the Council that this had happened on 18 December 2006 on the ground floor and staircase. On the same occasion Arena magazine had been filming upstairs. She said that Harper’s Bazaar had negotiated a hire rate of around £400 with Mr Davenport personally. She also confirmed that at least two location companies were advertising the premises for hire at the email addresses www.jjlocations.co.uk and www.impulseevents.co.uk. The premises were still being advertised, as the Council confirmed, at those email addresses on 26 June 2007. Ms Schmidt later clarified that Harper’s Bazaar had paid £450 to Best World Locations for the December filming (which had involved three female Newsnight presenters).

An inspection on 27 June by two planning officers revealed that filming was taking place that evening at the first floor level. It transpired that a German advertising agency called DDB had booked the premises for two nights through a website called Lavish Locations. The ground and first floors were being used.

A web search on 3 July 2007 revealed that at least six companies were advertising the premises for commercial purposes, including for use as a filming location. Accordingly, two days later, a further warning letter was issued. Questions were posed to which answers were required by the Council within 21 days. Nothing happened until a request for a 30-day extension was made by solicitors on 25 September 2007. The letter included the following assurance:

“Our client is anxious to comply with relevant planning legislation and is ensuring that the property is used for the purposes of a private residential house in accordance with relevant planning legislation. Assuring you of our close attention to all these matters on an ongoing basis . . . ”

The request was granted. No response was, however, received. This might legitimately be characterised as one example of “playing the system” and “exploiting every opportunity for prevarication and delay”: see Porter at [29], per Lord Bingham.

Meanwhile, there were further complaints from residents of events taking place in July, October and November 2007. These were sometimes accompanied by photographic or video records of what had taken place. They appeared to confirm continued non-compliance with the enforcement notice and warning letter. For example, on 22 November 2007 there was a sign displayed outside the building announcing “Spring/Summer 2008 Press Day – Tesco Home and Furniture Collections”.

Complaints from residents were received in May and June 2008 of various events taking place, and on 10 July of that year a warrant was obtained from magistrates to gain access to a Porn Disco to be held the following day. It had been advertised on the web and tickets cost £10 each. The officers who attended the event confirmed the accuracy of the description.

On 31 October 2008 there was to be a Hallowe’en Party, which was advertised, and a Council officer obtained a warrant to enter the property on that occasion. Two planning officers attended with police and licensing representatives. Evidence is before the court as to what was found.

On 1 May 2009, the Head of Legal Services served letters on the relevant persons seeking an undertaking that the premises would not be used in contravention of the enforcement notice. None has been forthcoming.

On 24 July 2009, an email was received, and put in evidence before me, which recorded events said to have taken place in May and June of that year. On 13 August a resident sent an email referring to a photograph in The London Paper for 25 June 2009 relating to a “Leap Anywhere” launch and also a number of web addresses indicating that tickets were available for purchase. The Council also downloaded a youtube video showing Mr Davenport discussing the premises and the use to which they had been put.

An email was received from a resident on 23 August 2009, which appeared to indicate, as a result of an Internet search, that the property was still being advertised for a variety of commercial purposes. Shortly after, on 12 September, a resident sent an email confirming that tickets were being sold for a party to be held on 6 November. There was also apparently an “art installation” which was to take place between September and December.

On 14 September 2009 a report was received from a resident of an event that had taken place the previous weekend and a complaint of noise nuisance. A few days later, on 18 September, a further complaint was made of an event then taking place at the property. Website addresses were also provided that were advertising events due to take place in November that year, referred to as “urbanjunkies” and “jellymongers”.

On 29 September 2009, an email was received from a resident reporting an event then taking place and referring to a large lighting rig on the pavement. So too, another event was reported as having occurred on the following evening resulting in a complaint of excessive noise. A similar complaint was made regarding an event at the premises on 3 October.

Advertisements were placed in the Metro and Evening Standard for a clothing sale at the property by “Maharishi” from 22 to 25 October 2009. Following a visit from one of the Council’s officers on 23 October, it emerged that the venue had been hired by a company called Global Scene Ltd.

Two planning officers attended an event there on 30 October 2009 and their reports were put in evidence. Also, an article was produced from Brides magazine showing the property being used as a wedding venue.

Council officers attended on 8 and 9 December 2009. Tickets had been advertised on the web for that event, which extended over three days. An advertisement also appeared in Time Out in relation to an event due to take place on 12 December, for which tickets were available.

On 3 December 2009 the Council had been notified that Mr Davenport had been arrested on fraud and money laundering charges and was likely to remain in custody until February of this year. Although a temporary event notice was given to the Council under s.100 of the Licensing Act 2003, in respect of events to take place on New Year’s Eve, it was notified in due course that it was being withdrawn in view of Mr Davenport’s detention in custody.

Searches of the web in December 2009 revealed, according to Mr Piper, that the premises were still being advertised for non-residential use. He obtained evidence, for example, that they were being advertised for pole dancing classes (said to be good for the circulation). These would involve six-week courses. Tango classes were also available at the property on two separate dance floors on Sunday evenings between 6.30 and 8.00 p.m.

Mr Piper referred also to Time Out advertisements for an “Architectural Punch Bowl” event on 10 December 2009. Ticket prices ranged from £6 to £50. These would include a glass of punch. Other drinks would also be available. He concluded that there was no intention to comply with planning control and indeed that the commercial use of the property was intensifying.

Mr Piper gave evidence of the planning harm said to arise from the use of the premises he had described up to that point. First, it conflicted with the Council’s aim to prevent residential accommodation being used for other purposes. Mr Lopez argues that this is unconvincing, since the property is used for residential purposes by Mr Davenport, in any event, and any guests he chooses to invite, and that this is not affected by the use of other parts of the building for parties and similar events. He points out that there is no permission for multiple residential occupation. Accordingly, his ceasing to use the premises for the purposes I have outlined would have no impact at all on the availability of residential accommodation. Nonetheless, Mr Piper submitted that the use of the premises was, for the reasons I have recorded, contrary to the Mayor’s London Plan and to the Council’s Unitary Development Plan. He thus regards the commercial use of the property as a breach of planning control. He contends, even if the 2006 enforcement notice had not been served, that the use could not be characterised as merely ancillary to the permitted residential use – especially in view of the amount of floor space used and the frequency and intensity of events.

It is on such matters as those, however, that Mr Lopez argues that the Council’s evidence is deficient. In relation to most of the events I have listed, the Council has not been able to state exactly which parts of the building have been used. That is not necessarily surprising, however, in view of the fact that Council officers were on a number of occasions refused admission. On the other hand, it is fair to say that evidence as to intensity of use is rather patchy. In Mr Piper’s account, there are plainly long gaps and no information available for those periods. I can thus only focus on the nature of the events, and their regularity, rather than upon their frequency – as to which it is not possible to form a complete picture.

Mr Piper has stated that parts of the residential accommodation upstairs have been used for bed and breakfast or hotel purposes. This is denied, however, and I am not in a position to resolve that conflict on a hearing of this kind. I propose, therefore, to put the issue to one side.

The second aspect of planning harm to which Mr Piper drew attention was the impact on residential amenity by reason of noise and disturbance. He stated that between 27 August 2006 and 15 November 2009 43 complaints had been received about noise and disturbance emanating from the building. He exhibited Noise Team Inspection Sheet Reports to supply the detail.

It seems that Environmental Health Officers from the Council were satisfied in relation to two specific occasions (both in 2008) that the noise was sufficiently loud as to constitute a statutory nuisance. Proceedings were therefore launched against Mr Davenport, but I understand that he was eventually acquitted in July 2010, according to Ms Sheikh, for the reason that he personally was not in the country at the material times. I do not believe that this account of the outcome is challenged by Mr Lopez. It would thus not necessarily imply that a statutory nuisance did not occur, but it serves to illustrate the difficulties faced by the Council in seeking to take effective enforcement action against the appropriate persons.

That represents a summary of Mr Piper’s statement of 22 December 2009, which was placed before the court when the injunction was granted in January 2010. His evidence has been updated to take account of events thereafter. He produced a further witness statement dated 12 July of this year.

It emerges that on the day before the injunction was granted advertisements were still appearing on the web for the pole dancing lessons. The cost for a six-week course would be £140 per person (although there was a reduction for group bookings). Places were available up to 29 March 2010.

Mr Piper rang the contact number provided in the advertisement. The owner of the business, apparently called “Polepeople”, was a Ms Alison Hudd, who duly rang back on 15 January. She confirmed that they ran classes at the property during the evenings from Monday to Thursday. She paid Mr Frederick Porter for the hire of the premises. He was the Operations Manager at the building, as he had confirmed to the Council’s officers on more than one occasion. One of his business cards was exhibited by Mr Piper and described as bearing “the Davenport Family Armorial”.

Mr Piper explained to Ms Hudd that an injunction had been granted against Mr Davenport and Persons Unknown, which prohibited the commercial use of the premises without the grant of express planning permission. She was unaware of this and concerned at the impact on her business – not least because she was giving courses that were only partly completed and also had a number of future bookings. It is thus clear that her advertisements, at least, have gone beyond mere “aspiration”.

Mr Piper told her that, in his view, continuation of the operation would constitute a breach of the terms of the injunction. He recommended, however, that she should seek independent legal advice. She was provided with a copy of the court order.

On 21 January of this year Ms Hudd telephoned Mr Piper and stated that she was willing to assist the Council with its investigations, as she felt that she had been treated unfairly by Mr Porter. He had refused to release her equipment unless she provided him with additional funding.

It is reasonable to conclude that the evidence relating to the tango and pole dancing lessons tends to demonstrate not only regularity but frequent and intensive use of the premises for commercial purposes.

At this point, there is another gap in the evidence until Mr Piper records that on 10 April 2010 an email was received by the Planning Enforcement Team stating that the property had been used during the previous evening to host a commercial sex party. Those attending were charged £90 upon arrival. The email also provided a web address (www.killingkittens.com).

It emerged in June of this year that a paper company called G F Smith had used the property to hold an event displaying over 100 years of iconic design and marketing innovation by the company. Mr Piper telephoned G F Smith. He subsequently received an email from a Mr Groves on 15 June, confirming that an event had been held at the premises between 7 and 11 June. G F Smith had booked the premises though a location agent called Air Space and paid a fee of £12,600 plus VAT.

On 16 June, a Ms Grossman of Air Space called Mr Piper to confirm that she was a director of the company and had booked the premises on behalf of G F Smith. She had paid a Mr André John £11,710 for the property. Unfortunately, it emerged that he had failed to pay the money onwards and she therefore had to pay Mr Porter an additional sum of £7,800. She was trying to recover the money from Mr John though county court proceedings.

A Planning Enforcement Inspector attended the property on 15 June, when it became clear to him that it was being used for filming. He was refused entry but was provided with a contact number for Ms Cranfield, who was the production manager. She confirmed by telephone to Mr Piper that her company, Tiger Aspect Productions, was using the property for a programme they were making for UKTV Gold. She had been unaware of the injunction and had paid Mr Porter a fee for its hire.

On 22 June Mr Piper was informed by the Council’s Special Events Team that an application for a parking dispensation had been submitted with a view to filming at the premises on 5 and 6 July. A Council officer duly attended on 5 July and found that the property was being used for filming. He was refused entry but was informed that the location manager, a Ms Lenszner, would contact Mr Piper.

She telephoned him and informed him that she was indeed the location manager for a company called Origin Pictures. There was to be filming over two days for a film called The Awakening. She too had been unaware of the injunction. She said that she had paid Mr Porter a fee for the use of the premises, and she later confirmed that this was £6,750. There had been a location agreement signed between Awakening Productions Ltd and Mr Porter.

On 6 July Mr Piper attended with a colleague and was able to confirm that filming was taking place in what is known as the Billiard Room at the rear of the property. Photographs were taken and put in evidence before me. It appears that there were at least 30 people milling about inside and outside the property. Mr Porter told Mr Piper that the injunction, which was supposed to be displayed outside the premises, had recently fallen down but that he would replace it. He also stated that he was of opinion that, if the property was entered via 4 Weymouth Mews, there would be no breach of the order.

On 3 July, Mr Piper opened a website link which confirmed that a performance of a play called Summit Conference was to take place “in the notorious cellars of 33 Portland Place”. The performance was to run from Wednesday to Saturday between 11 August and 4 September of this year. Live music would be available after the performances and a bar would be run until 10.00 p.m.

On 5 July, Mr Piper accessed the Aya Theatre website, which was advertising the Summit Conference production, and submitted his details and preferred date of attendance (19 August 2010). Next day he received a confirmation by email inviting him to attend on that date.

The Council takes the view, in the light of all this evidence, that there have been persistent and flagrant breaches of the order granted in January and is accordingly taking separate proceedings for committal.

Mr Davenport in his evidence makes a number of points. He argues that the use of the property has not been sufficiently intensive to prejudice what he calls “the primary use” of the property as residential premises. He has said that the annual costs of running the property are approximately £250,000 and that the earnings from the activities described by Mr Piper can only make a limited contribution to this cost. The essence of his case is to be found in paragraph 56 of his first witness statement: “It is not feasible to suggest that these activities are profitable or of a commercial nature and these activities cause no noise disturbance or have any impact on the neighbourhood”.

Mr Davenport states that the ongoing dispute between him and the Council centres on whether the fact that the primary use of the property is residential, which he accepts, entails that other non-residential uses are prohibited. He regards what has taken place as being ancillary to the residential use. The fact remains, however, that no application has been made for planning permission or a certificate of lawful use; nor indeed has there been any application to vary or discharge the injunction granted in January. Mr Davenport’s case is that “the correct and proper avenue for the Council to pursue would be a prosecution under the enforcement notice”, which has not been done so far.

Mr Davenport’s conclusions at the end of his first witness statement are as follows:

“77.

I say that the primary use of the Property is residential. This has never been denied or disputed by me, as clearly shown in correspondence and at meetings.

78.

The occasional use of the Property for commercial filming and my business activities are lawful and not a breach of planning.

79.

The primary use of the Property as residential premises would and could not be prejudiced by either the scale or the degree of the occasional use of the Property for commercial filming and the owners business activities as with all of these events less than 15% of the premises is used.

80.

The occasional use of the Property for commercial filming and my business activities are ancillary to the primary use and will not change the primary use of the Property as a residential unit. This is how the Property has historically been used for the last 100 years.

81.

This is a suitable occasional use for part of an historic residence and is accepted as being so by Westminster Council and all other relevant institutions for all similar buildings.

82.

Portland Place itself and the other buildings in the street are of such a nature that this use is suitable for the street.”

It would not be appropriate for the court to enter into that debate, since to do so would be inconsistent with the general principle outlined by Simon Brown LJ in the passage from Porter cited above. In deciding whether or not it is appropriate at this stage to grant a permanent injunction, in terms corresponding to those of the January order, it is not for me to readdress the merits of the planning issues.

In his second witness statement Mr Davenport again goes through the history of the building and states that the use of the property “ … has always included the use of part of the Property for events and offices with some commerciality. The principle use [sic] being a residential house with the commercial activity ancillary to that use”. None of his historical research and analysis has any bearing on the obligations arising either from the enforcement notice of 2006 or from the injunction granted earlier this year.

At paragraph 19 of his second witness statement, Mr Davenport states:

“The Property has been used as a large grand London town house and has carried on the tradition of offering entertainment and impressing guests of the house residents and owner.”

That does not, on the other hand, accurately reflect the nature of the commercial activities advertised and taking place over the last few years.

Evidence was introduced on Mr Davenport’s part shortly before the hearing from Mr Maximilian Wakefield and Mr Nicholas Sutton. The former is a professional resolver of licensing issues and has been a licensing consultant to nightclub chains and individual operations. His evidence was primarily directed to noise levels in Portland Place, where he concluded that the predominant noise is that of traffic and that music would make very little difference to amenity.

Mr Sutton has apparently been engaged as a planning expert and has experience both here and in Australia. Mr Lopez said that his evidence has been adduced to assist the court on “fact and degree”, whereas the Council has made no attempt to do so. But the witness enters into a debate about the planning merits which I am not permitted to do. As Lord Scott pointed out in the Porter case, at [100], it is not for the court to turn itself into a tribunal to review the planning decisions of the relevant authority. It would not be right for a judge to refuse an injunction simply on the ground that he disagreed with the planning decisions taken. To similar effect were the words of Lord Hutton at [92]. I should not determine any issue which would involve me in assessing planning considerations which lie within the ambit of the planning authority.

Mr Sutton concludes that there has been no material change of use and that the events which have taken place, being ancillary to the primary residential use, did not require planning permission. Alternatively, he puts forward (presumably to the Council rather than to the court) certain proposals for compromise, namely to the effect that Mr Davenport would be willing to limit the use of the property to a specific set number of events per year and, in particular:

In the light of the evidence introduced on either side, I find that I am unable to accept Mr Lopez’ primary submission, to the effect that no breach of planning control has been identified, or even properly assessed, by the Council. In so far as it is properly a matter for me to determine, I am satisfied that the Council has established that the requirements of the enforcement notice have been breached by the use of parts of the premises, in the ways described above, for commercial purposes that cannot reasonably be characterised as ancillary to residential use.

I bear in mind in this context, as I was invited to do, the remarks of Ralph Gibson LJ in Wealden District Council v Secretary of State for the Environment [1988] JPL 268, 274, to the effect that “ … the question whether a particular additional use was ancillary to or included within the primary use of the planning unit [is] to be determined objectively in the sense that the purposes for which the land was used [have] to be determined according to all the evidence, in addition to evidence of what the occupier said was his purpose, including evidence of what was being done on the land and the assessment of the relationship of that activity to the primary use”.

I also take note that Ralph Gibson LJ in that case, like Diplock LJ in G Percy Trentham v Gloucestershire County Council [1966] 1 WLR 506, appeared to treat “ancillary” as equivalent to “incidental”. The issue is generally approached by the courts as one of fact and degree. Moreover, although it should not be regarded as determinative, the level of use can be a significant indicator as to whether an activity is to be regarded as ancillary or incidental. For example, the sale of home grown produce has generally been regarded as incidental to agricultural use (i.e. the activity of growing the produce). On the other hand, there may come a point when the proportion of produce that is not home grown will lead the court to conclude that the sales activity is more akin to that of a retail shop: see the discussion in Allen v Secretary of State for the Environment (unreported), QBD, 10 July 1989.

I was asked also to have regard to the test applied in Harrods Ltd v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 412; that is to say, whether the commercial uses in question could be described as “ordinarily” incidental to the primary use.

One of Mr Lopez’ arguments was to the effect that the Council cannot speak to the functional relationship between the residential use of the property and ancillary uses of the basement, ground and first floors. This is based upon the supposed inadequacy of the Council’s evidence as to the nature, scale and location of the events relied upon. Nor, he submits, has the Council produced evidence as to the number of persons attending, the basis on which they have been invited or the amount of any monies paid. In my judgment, however, the evidence it has provided suffices to demonstrate that the activities cannot be characterised as ancillary (or incidental) to residential use – still less “ordinarily” incidental to residential use. They have nothing to do with the residential use and are quite distinct from it. Mr Davenport, no doubt mostly through others, is clearly willing to hire out parts of the building and does so as often as possible in order to make money. There is nothing inherently wrong about that and it may be that it is necessary for him to do so in order to fund the upkeep of the building. The only problem is that this represents a change of use and would require planning permission.

A further point taken by Mr Lopez was that the Council had taken no valid enforcement action in respect of the alleged breaches of planning control. Accordingly, he submits that it has not been demonstrated that there has been a failure to comply with the enforcement notice. This seems to me a non sequitur. It may be that the Council could be criticised for delay in their efforts at enforcement. I come to no conclusion on the validity of such criticisms myself. Yet, even if they were valid, it would by no means follow that there has been no failure to comply. It certainly cannot be suggested that the Council has, simply through lack of vigour, in any way encouraged or acquiesced in the use of the property for commercial purposes.

It has also been alleged by Mr Lopez that the Council’s action in seeking an injunction from the court was ultra vires. It is clear from material placed before the court by Ms Sheikh that this would be among the several powers and responsibilities delegated to the Director of Legal Services. I do not see any merit in the point.

Despite the criticisms of “inordinate delay” on the part of the Council in taking enforcement action, it is also said on Mr Davenport’s behalf that the application for an injunction is “premature”. It should be regarded as a matter of last resort in a planning context and, Mr Lopez submits, alternative means of enforcement should have been tried first. The submission is that the grant of an injunction would be neither “just and convenient” nor “necessary or expedient” for the purposes of s.187B of the statute.

Mr Lopez has also submitted in the alternative, assuming (a) that the enforcement notice is not a nullity, (b) that it has been demonstrated that there is an authorised use for residential purposes, and (c) that there has been a material change of use, that the court’s discretion to grant an injunction should not in any event be exercised on these facts in the Council’s favour.

I cannot accept this. Over a number of years there has been an unwillingness either to accept the Council’s determination of the planning issues (in particular, as to what constitutes change of use and/or commercial activity) or to make an application for planning permission (or, for that matter, a certificate of legal user). Moreover, assurances have not been adhered to and, more recently, the obligations imposed by the January injunction have not only been ignored but also concealed from at least some of the persons who have paid money to hire the premises (such as Ms Grossman, Ms Cranfield, Ms Lenszner and Ms Hudd). The Council has a duty to enforce planning control and there seems to be no alternative way of achieving this effectively without the grant of an injunction.

I bear in mind, of course, the warning of Simon Brown LJ in the Porter case (quoted in the House of Lords at [20] and [53]) that “the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order … ”. Similar remarks were made by Lord Bingham at [32]. But such comments need not give rise to any inhibition on the present facts.

Moreover, I should also take account of the words of Lord Bingham in the same case, at [29], as to the power bestowed by s.187B:

“The power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court’s discretion should be exercised in favour of granting an injunction from those in which it should not. Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint (City of London Corpn v Bovis Construction Ltd [1992] 3 All ER 697, 714), that will point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay, although section 187B(1) makes plain that a local planning authority, in applying for an injunction, need not have exercised nor propose to exercise any of its other enforcement powers under Part VII of the Act. In cases such as these the task of the court may be relatively straightforward … ”

This seems to me to be one of those cases that are “relatively straightforward”.

Mr Lopez makes a further alternative submission; namely, to the effect that if the court is minded not to refuse a permanent injunction, then it should vary and/or suspend it. It is said, for example, that commercial and non-residential use of the basement, ground and first floors should not be prohibited generally or, at least, so far as certain specified uses are concerned. It is also suggested that the court should suspend the impact of any injunction until the determination of planning applications submitted on Mr Davenport’s behalf. Yet, as Ms Sheikh points out, there are no such applications pending. The opportunity has not been taken at any point since the service of the enforcement notice.

In the context of suspension, my attention was drawn Brent LBC v Dowman [2004] 2 P & CR 8. In that case an injunction was amended so as to allow use of the premises as a repair workshop for vehicles – provided the premises were used for fitting goods sold in the appellant’s shop in a manner ancillary to the use of them as a retail shop. Keene LJ emphasised, however, that it was not open to the respondent to argue points which could have been taken upon service of an enforcement notice. None of the arguments should be “elevated into a disguised challenge to the validity of the enforcement notice itself”: see also North West Estates Plc v Buckinghamshire CC [2003] EWCA Civ 719 at [40]-[42].

I reject the arguments based on suspension and/or variation for two primary reasons. First, it seems to me that those are all matters to be canvassed, if at all, on a planning application to be considered by the Council in the exercise of its statutory functions. It is not for the court to substitute itself in the discharge of those functions. Secondly, it seems clear on the recent evidence placed before me, covering the period since the grant of the January injunction, that there has been a determination, specifically on the part of Mr Porter acting on Mr Davenport’s behalf, to flout the order and to carry on the commercial activities regardless. Mr Davenport would not, therefore, be in a position to attempt to negotiate with the court in any event – in the sense of inviting a favourable exercise of discretion.

It is said that the injunction proposed would be “oppressive” and create “overwhelming hardship and prejudice” to Mr Davenport and to others. This was explained on the basis that such a large building, with approximately 110 rooms, would be unsustainable as a single residence. It can only be maintained or improved if revenue can be generated by using the lower floors for business purposes. It is also claimed that the value of the property would be adversely affected by the grant of an injunction.

I do not underestimate the burden of maintaining a property of this size, but it seems to me yet again that the answer is to seek planning permission for the activities by which Mr Davenport wishes to raise the necessary funds. There is no evidence of oppression or hardship in the sense in which those concepts normally arise on applications of this kind where, for example, families are likely to be rendered homeless or children to suffer as to their education or physical wellbeing. There are no considerations arising under Article 8 of the European Convention on Human Rights that need, on the facts of this case, inhibit the grant of an injunction in support of the Council’s statutory functions.

Mr Lopez has invited the court to grant a declaration pursuant to CPR Part 40 to the effect that the 2006 enforcement notice was a nullity. I am not persuaded that it was but, in any event, it is necessary to remember that permission is required to bring a counterclaim in proceedings of this nature and that it is not appropriate to introduce such a claim at the last minute in counsel’s skeleton argument. Furthermore, what is sought is a public law remedy.

He has also submitted that the Council “cannot exclude use of the planning system by imposing a planning use by means of injunction”. I do not believe that this is the intention of the Council, any more than it was in 1960, when the condition imposed allowed for the possibility of permission being granted for some use other than residential. I would only propose to restrain commercial or other non-residential use to the extent that permission has not been granted through the usual process; in other words, to prohibit only unauthorised use. I will hear submissions from counsel as to the detailed drafting of the order.