A ruling that an inspector failed to consider the full range of powers potentially available to him, when considering a house converted into five flats, has been overturned.
Last year, Ouseley J found that the inspector failed to consider whether he could permit a three-flat scheme to address the objections of impact to amenity raised by the five-flat development, under s174(3)(b) of the Town and Country Planning Act 1990, even though the amenity in question existed only as a result of the development that was the subject of the notice.
But, allowing an appeal by the Secretary of State for Communities and Local Government today, Sullivan LJ ruled that the inspector’s conclusion that he did not have power to consider the three flats scheme was correct.
The ruling means that the inspector’s decision, to reject Christakis Ioannou’s appeal against an enforcement notice, will stand.
Ouseley J, in his High Court decision, said that Ioannou had failed in a “prolonged and disgraceful” effort to hide from the London Borough of Enfield the fact that he had converted the house at 15 Hamilton Avenue, London, N9, into five self-contained flats.
The local authority issued the notice requiring him to cease the use of the premises as five separate units of accommodation, on the basis that the four bedsits and one two-bedroom flat suffered from substandard internal floor areas, over-intensive use and poor living conditions for residents.
On appeal, Ionnau put forward a compromise three-flat solution arguing that, if restored to a single family house, he would not require planning permission to change it into a house of multiple occupation (HMO) and that a three-flat design would address the issue of living conditions but be preferable to the council than an HMO.
However, the inspector concluded that, as a matter of fact and degree, the three-flat scheme was so substantially different from the five flats, that consent for it could not be granted on a deemed application for planning permission, or by altering the steps required to be taken under the enforcement notice.
Though rejecting Ioannou’s claim that planning permission should have been granted for the five-flat development, the judge did allow his appeal to the effect that the notice requirements exceeded what was necessary to remedy the breach of planning control or the amenity harm.
Though he said he had “strong reservations” about the decision, Ouseley J found that the inspector had failed to consider applying section 173(4)(b), and to consider whether the three flat solution could address the concerns raised.
Overturning that decision, Sullivan LJ said that in doing so the judge had wrongly applied the principle in Bernard Wheatcroft v Secretary of State for the Environment to the provision.
He said: “In concluding that the inspector should have asked himself as a matter of fact and degree whether the three flats scheme was ‘substantially different’ from the five flats actually developed Ouseley J applied the Wheatcroft principle. In my judgment, the Wheatcroft principle had no application in the present case.
“The power to allow an appeal under ground (f) in subsection 174(2) is not a power to grant planning permission. If planning permission is to be granted in response to an appeal under section 174 it may only be granted under section 177(1).
“While application of the Wheatcroft principle would enable a condition or conditions to be imposed upon a grant of permission under section 73A to cut down the extent of the existing development that was granted permission, it could not authorise a grant of planning permission for development that was proposed to be carried out, such as the three flats scheme.”
He concluded: “The inspector’s conclusion that he did not have power to consider the three flats scheme under the ground (f) appeal was correct. Ouseley J’s judgment to the contrary must be set aside, and the inspector’s decision restored.”
Ioannou v Secretary of State for Communities and Local Government Court of Appeal (Sullivan, Rafferty and Lloyd Jones LJJ) 31 October 2014
Jonathan Wills (instructed by Kingsley Smith) for the claimant/respondent
Charles Banner (instructed by The Treasury Solicitor) for the defendant/appellant
