Enforcement Notices: Clarity Is Key
Sam Fowles, acting for the Cee Cee Partnership, has succeeded in overturning an enforcement notice issued against a residential development in South London.
The Case
In 2016 the LPA granted the developer permission to construct a single-story “annexe” extension to a two-story mews house in South London. The permission contained a condition that the annexe must be only used as ancillary to the mews house. In September 2020, the LPA issued an enforcement notice alleging two unlawful changes of use: (1) the mews house had been converted from a single live/work space to two residential flats (upper floor and lower floor) and (2) the annexe was in use as a single residential flat, separate from the mews house.
The developer appealed the notice, and the appeal was refused. The developer (instructing Fowles) challenged the refusal by statutory review, and the High Court set the Inspector’s decision aside (a full account of this matter can be found here). The High Court remitted the matter to the Planning Inspectorate for re-determination, and the Inspector ordered a new hearing.
Shortly before the hearing, the LPA conceded that the upper and lower floors had been in separate use since around 2000 and agreed not to defend the first alleged breach of planning control. The hearing focused on evidential issues, with legal matters dealt with subsequently by written representations. The Inspector accepted Fowles’ argument that the notice was nonsensical in light of the LPA’s concession. The red-line plan encompassed the entirety of the mews house and garden. At the same time, the alleged breach of planning control was limited to a small part of that area. As the Inspector reasoned:
Both parties refer to the development as a material change of use of the land, but neither states what the previous use was. Whilst there is no requirement to do so in the description, it would be unclear whether the notice alleged the single-storey building was only ever used as a dwellinghouse in this case. Under those circumstances, no material change of use of the single-storey building (the act of development) would have occurred. The description would have to be phrased differently regarding the description of the development granted permission in 2015. Also, stating the material change of use of the land raises a question as to the lawfulness of the new building in view of the permission.
Alternatively, a reason for issuing the notice states that the use of the single-storey side extension/annexe as a self-contained residential unit is contrary to condition 6 of the 2015 permission. The breach would then appear to be within paragraph (b) of section 171A(1) of the 1990 Act, “failing to comply with any condition or limitation subject to which planning permission has been granted.” This approach would require the development to have permission for this to be carried out. The land would not be confined to the plot adjacent to the principal building.
Clearly, the way the description of the alleged breach of planning control is described would affect the definition of the land, the scope and matters to be considered in a ground (c) appeal, the subject of any ground(a)/deemed planning application and the wording of the requirements.
I conclude that the enforcement notice does not specify with sufficient clarity the alleged breach of planning control in respect of the building known as the single-storey side annexe/extension and the land where the breach of planning control is alleged to have taken place. It is not open to me to correct the error in accordance with my powers under section 176(1)(a) of the 1990 Act as amended since injustice would be caused to the local planning authority and to the appellant were I to do so.
In light of the Inspector’s analysis, the other grounds of appeal did not fail to be determined.
Analysis
What may appear to be merely a case of unfortunate drafting, in fact, reveals a more profound danger for LPA’s issuing enforcement notices. In this case, the lack of clarity in drafting the notice was merely a symptom of the lack of transparency in the LPA’s approach. In this case, LPA had evidence that the mews house had been in use as two separate dwellings for more than a decade. Yet it adopted a “prove us wrong” approach, issuing the enforcement notice and then defending it on the basis that the burden of proof lay on the appellant. The LPA did nothing but assert that the appellant had not reached the evidential threshold.
This approach may be a prima facie, attractive one for LPA, but, as this case shows, it can easily backfire. So instead, LPAs issuing enforcement notices are advised to conduct a sufficient investigation and build a positive (and evidenced) theory of the case before issuing any notice. This approach is more in line with what might be expected from responsible public authorities and provides the clarity required to draft a more effective notice and argue a more compelling case should it be challenged.
The Inspector’s full decision can be found here.
