In London Borough of Brent v Secretary of State for Levelling Up, Housing and Communities and another [2022] EWHC 2051 (Admin), the High Court has clarified the ambit of “dwellinghouse” for the purposes of the Town and Country Planning (General Permitted Development) (England) Order 2015.
The council served an enforcement notice on the second respondent, Yehuda Rothchild, alleging the material change of use of a single dwellinghouse into a house in multiple occupation and self-contained flats and the erection of a single-storey extension without planning permission.
Rothchild appealed the enforcement notice, contending the change of use was to a HMO for up to six people and therefore permitted by Schedule 2, Class L of the GPDO and that the council had previously determined that prior approval was not required for the extension under the GPDO (while this was determined under the previous 1995 GPDO, the provisions remain materially the same). The inspector accepted Rothchild’s arguments and quashed the enforcement notice. The council challenged the decision on two grounds and, while the secretary of state did not defend the appeal, Rothchild did.
First, the council submitted that although the property was a dwellinghouse when the prior approval notification was made, the inspector failed to consider whether this was still the case when the extension was actually built and an assessment that the property fell within use class C4 was not sufficient alone. The court disagreed, finding that use within use class C4 is inherently use as a dwellinghouse, with no further requirement for residents to form a single household. Therefore properties within use class C4 enjoy the permitted development rights afforded to dwellinghouses.
Secondly, the council contended that, even if the property was a dwellinghouse, the extension was not built in accordance with the information supplied in the prior approval notification and the inspector should have identified this on his site visit. The court rejected this argument as it was not raised in the appeal making it procedurally unfair to allow such representations as Rothchild had not had the opportunity to respond. It also stated that, while the inspector may have had jurisdiction to raise these matters, there was no obligation in law to do so. The function of the site visit was to make a judgment about submissions raised not to explore potential new ones.
This judgment clearly demonstrates that the courts will not entertain arguments that properties factually falling within use class C4 are not dwellinghouses and that, for planning purposes, the definition of “dwellinghouse“ should be construed consistently across legislation unless expressly stated. It also reminds appellants and local authorities alike that all relevant arguments must be adduced at appeal stage as there is little scope for their introduction in a later challenge, and reliance on a practice by inspectors of raising new points of their own accord would create a “breeding ground for further disputes.”
Erica Ives is a solicitor in the planning & environmental team at Irwin Mitchell
