Town and country planning – Enforcement notice – Waiver – Appellant convicted at magistrates court of breach of enforcement notice – Crown court dismissing appeal against conviction – Appellant appealing by way of case stated – Whether sufficient evidence to conclude that requirements of enforcement notice not waived pursuant to section 173A of Town and Country Planning Act 1990 – Appeal dismissed
On 28 March 2008, the respondent local authority respondent issued an enforcement notice to the appellant under section 172 of the Town and Country Planning Act 1990. The notice related to land at 13 Bounds Green Road, London N22. Since the 1990s, the property has been lawfully used as two flats. During a site visit in November 2007, the respondent’s officers noted that there had been an unauthorised conversion of the Property into five self-contained flats.
The enforcement notice required the appellant to: stop using the property as five self-contained flats; remove from the property all fixtures and fittings relating to the unauthorised conversion; restore the property as two flats (requirement 3); and remove from the property any materials and debris associated with the unauthorised conversion.
The appellant was subsequently convicted at the magistrates’ court of breach of the notice in 2021. The appellant’s appeal against conviction to the Crown Court was dismissed. The court rejected the appellant’s contention that having accepted in correspondence in 2008 that there had been compliance with the notice to the satisfaction of the respondent, without requirement 3 having been met, the respondent had waived the requirement.
The appellant appealed by way of case stated asking the court to determine whether the Crown Court was correct in deciding that there was sufficient evidence on which it could properly conclude that the requirements of the enforcement notice had not been varied (waived or relaxed) pursuant to section 173A of the 1990 Act.
Held: The appeal was dismissed.
(1) The respondent plainly had power to waive or vary an enforcement notice under section 173A. The question whether it had done so had a very substantial factual component but it also involved issues of law, because it had to be seen in its statutory context.
The issue before the Crown Court was whether, as a matter of mixed fact and law, there had been a waiver of requirement 3. The court was entitled to take into account all the available evidence touching on that issue, whether it was contained in notes held on the respondent’s files or contained in correspondence with third parties. All that evidence was relevant to the question whether there had been a waiver. Specifically, the court was entitled to take account of what the respondent’s planning enforcement officers said at the time. That was all relevant evidence about the thought processes of those involved in the planning department of the respondent even though they were not necessarily determinative of the issue.
It was also relevant for the Crown Court to understand the background: the fact that the enforcement officer met the appellant’s representatives on site who gave her assurances that the property was to be used as a single dwelling-house in future. That provided the background to the officer’s record that what the appellant had done or said it would do was acceptable for compliance. The respondent had clearly signified that it was satisfied with the property being used as a single dwelling-house: That message was consistent with internal entries in the respondent’s files, and with the officer’s evidence and understanding of what had occurred.
(2) The Crown Court was entitled to conclude that no variation of the enforcement notice had ever occurred: a local planning authority could say what it would accept as compliance with a requirement of an enforcement notice without waiving that requirement. It was important not to elide those two things. The language used by the enforcement officer simply meant that the authority would not take action under the enforcement notice against conversion to a single dwelling. It did not mean that the respondent was going further by effectively deleting requirement 3, so that the enforcement notice would no longer prohibit the use of the property for more than two flats: Kammins Co v Zenith Investments [1971] AC 850, Co-operative Wholesale Society v Chester le Street District Council (1997) 73 P&CR 111 and Wilsdon v Maldon District Council [2021] EWHC 715 (Admin) considered.
(3) Section 181 of the 1990 Act provided that compliance with an enforcement notice did not discharge it; section 172A(1) provided that even if an enforcement notice had been issued, the local planning authority could give an assurance that that there would be no prosecution based on it (which assurance might be withdrawn under subsection (2)); section 173A provided that a local planning authority could relax or waive a requirement in an enforcement notice but could not make it more onerous. Those provisions would have been familiar to the enforcement officer and they provided the context in which her actions should be assessed.
Read in the context of those provisions, the actions of the enforcement officer made perfect sense: she took the view, based on the appellant’s proposals, that there would be no prosecution, even though requirement 3 had not been met in terms, which was to exercise powers akin to those in section 172A; she had no power to require the appellant to use the property as a single dwelling-house, which would have been more onerous than the use as two flats which was specified in requirement 3, that being the effect of section 173A.
(4) There was no notice of variation pursuant to section 173A(3). That was evidentially significant, because it was consistent with all the other evidence in showing that the respondent had not intended to vary the enforcement notice and had not, to its knowledge, done anything to vary or induce a belief that there had been a variation.
The appellant’s assertion that the acceptance of a single dwelling-house, as satisfactory compliance with requirement 3 in this case, necessarily amounted to a waiver of that requirement, was unsound in law and unsupported by the facts and evidence. It was open to the respondent to accept use as a single dwelling-house as satisfactory compliance with requirement 3, in the sense that the respondent would not take further enforcement action so long as that was how the property was used, without waiving requirement 3 or rendering it unenforceable in future.
Melissa Murphy KC (instructed by Sonn Macmillan Walker Solicitors) appeared for the appellant; Charles Streeten (instructed by London Borough of Haringey Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Pathfield Estates Ltd v Haringey London Borough Council
