Planning permission for extensions – Drawings referring to potting sheds – Building erected described as pavilion and including 3.2 m wall – Wall having adverse effect on adjoining properties – Enforcement notice requiring wall to be lowered – Whether planning permission given for wall – Whether planning authority estopped by letter from their building department – Whether reduction in height necessary to remedy injury to amenity – Appeal dismissed
The appellant erected a pavilion in the rear garden of her house in Cottesmore Gardens, Kensington. The building, which spanned the full width of the garden, consisted of two small rooms glazed to the eaves and occupying each of the rear corners of the garden. A connecting roof was supported at its back by a brick wall almost abutting the boundary with adjoining gardens and at its front by two pairs of Doric columns. The connecting roof sloped from back to front and bore in its centre a clock mounted on the face of a dormer of Alpine design. The appellant had been granted planning permission by the planning authority for the erection of extensions, but on the drawings the two small rooms were described as timber potting sheds. When built, the planning authority found the structure acceptable, apart from the high wall which they thought had an adverse effect on adjoining properties. However, they took the view that the planning permission had not extended to the structure shown on the drawing and served an enforcement notice on the appellant requiring her to reduce the height of the rear garden wall from 3.5 to 2 m.
The appellant appealed against the enforcement notice on three grounds under section 174(2) of the 1990 Act and an inquiry was held. The inspector dismissed the appeal. The appellant challenged his decision on the ground that the erection of the wall had been permitted by the planning permission, that the planning authority were estopped from from asserting that it was not so permitted, that reduction in the height of the wall to 2m exceeded what was necessary to remedy any injury to amenity and that the inspector had not referred in his report to the appellant’s suggested solution.
Held The appeal was dismissed.
1. The inspector had been right to treat the permission as permitting the structure as a whole rather than its individual components (see Copeland Borough Council v Secretary of State for the Environment (1976) 31 P&CR 403) and had not erred in concluding that the matters stated in the enforcement notice constituted a breach of planning control. Nevertheless the approach adopted by the planning authority in understating the breach because they proposed to under enforce was not necessary. They would have avoided some of the difficult considerations had the breach of planning control been fully rather than partially stated and, once the wall had been altered in accordance with the notice, the appellant would have had the benefit of deemed planning permission.
2. There was no question of an estoppel because there had been no evidence that the appellant had relied to her detriment upon the statement in a letter from the authority’s department of building control confirming that planning permission had been granted in respect of the wall but pointing out that, since it exceeded 6 ft in height it was required to be licensed under section 30 of the London Building Acts (Amendment) Act 1939. The enforcement notice had followed 17 days after the letter and the appellant had not ignored it, but had appealed against it.
3. On the evidence it was clear that the inspector had not left out of account consideration of the appellant’s suggested modification, but did not consider it to be sufficient to remedy the damage to amenity.
Michael Druce (instructed by Charles Russell) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondents Kensington and Chelsea Royal London Borough Council, did not appear and were not represented.
