Planning permission – Residential development – Breach of planning control – Defendant local authority granting planning permission but finding completed development to be in breach of planning control – Defendants deciding to take no further action – Claimant applying for judicial review – Whether decision being unreasonable and perverse – Whether defendants failing to take account of relevant considerations – Application granted
The defendant local authority granted a developer planning permission to construct a residential development at a site previously used for industrial purposes to the rear of 14 Upper Hollingdean Road, Brighton. The permission comprised a change of use from industrial/business to residential conversion of the main building into two town houses, the erection of a single dwelling house in the north east corner of the site and the demolition of outbuildings. The claimant and interested parties were affected by the development as it backed onto their gardens.
Following substantial completion of the development, the defendants carried out site inspections in response to complaints from neighbours and concluded that there had been a breach of planning control. In particular, the finished dwelling house was higher than had been intended and there had been a failure to install photovoltaic roof tiles. The result was far greater inter-visibility to the windows in the west elevation. The defendants decided to take enforcement proceedings requiring the demolition of the dwelling house and a notice pursuant to section 16 of the Local Government (Miscellaneous Provisions) Act 1976 was issued.
The developer’s application for retrospective planning permission was refused and an appeal against that refusal was dismissed on the basis that, amongst other things, the development had deviated significantly from the plans approved when planning permission had been initially granted. The defendants later decided to take no further action on the basis that it would not be expedient to take enforcement action against the unauthorised development because: (i) the poor quality of the building construction could not be addressed by an enforcement notice; (ii) the increase in the height of the house did not cause sufficient harm to the outlook and privacy of neighbouring properties or the overall character and appearance of the building; (iii) the planning conditions attached to the permission could not be enforced as the structure was not authorised; and (iv) the planning merits had not been considered in the appeal against the refusal to grant retrospective planning permission. The claimant applied for judicial review of that decision on the basis that it was unreasonable and perverse and failed to take into account relevant considerations.
Held: The application was granted.
Under the statutory scheme, a local planning authority had power to issue an enforcement notice under section 172(1) of the Town and Country Planning Act 1990 where it appeared to them that there had been a breach of planning control and that it was expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations. A “breach of planning control” was defined in section 171A(1) of the 1990 Act as carrying out development without the required planning permission or failing to comply with any condition or limitation subject to which planning permission had been granted. A local planning authority had power to issue a breach of conditions notice under section 187A where conditions attached to planning permission had not been complied with.
On the facts of the present case, the defendants’ decision had been perverse and the planning officers concerned had failed to have proper regard to relevant factors set out in their earlier assessments. The reasons given for the enforcement notice had been, amongst other things, that the dwelling house should have been almost completely screened but because of the unauthorised increase in height, there was material harm by way of overlooking, over- shadowing and loss of privacy on neighbouring properties. Planning permission had originally been granted “on balance”, on the basis that the dwelling house would not project above the boundary screening. The development in its current form would most probably have tipped the balance against the grant of permission.
The court would have expected the inspector’s observations when dismissing the developer’s appeal against refusal of retrospective planning permission in 2011, to have alerted the defendants to their inadequate handling of the existing problems and to take swift action to remedy them. However, there was no evidence of any steps taken before the decision not to take further action in 2012 which, after that long delay, made matters worse. The decision was perfunctory and gave no explanation as to why the defendants were now departing from the earlier assessments to the effect that the development had an unacceptable impact on the amenity and privacy of the neighbouring properties and should be demolished.
There had been a site visit prior to the decision not to proceed, but the neighbours had been unaware of it. The officers were not legally obliged to consult the neighbours affected, but their failure to do so contributed to their failure to take into account all the relevant factors, such as the deterioration in the state of the “green roof” and the impact which the overlooking had had upon the neighbours. Moreover, if the officers had consulted the neighbours about the proposal to increase the height of the boundary wall, they would have appreciated why it was not likely to provide a satisfactory solution. In all the circumstances, the decision was legally flawed and would be quashed. The defendants would be ordered to re-consider the outstanding issues in respect of the development.
The claimant appeared in person; Robert Williams (instructed by Brighton and Hove City Council) appeared for the defendants; The interested parties appeared in person.
Eileen O’Grady, barrister
