R (on the application of Zzz Incorporated) v Secretary of State for Transport, Local Government and the Regions and another

Appellant converting property into flats without planning permission — Local planning authority issuing enforcement notice requiring property to be returned to previous lawful use — Dispute over burden of proving previous lawful use — Appeal dismissed In 1997, the appellant purchased a property and, without planning permission, converted it into a number of self-contained flats. In 2001, the second respondent local authority served an enforcement notice requiring the appellant to return the property to its previous use as a multiple-occupancy dwelling. The appellant appealed to the inspector, who concluded, on the evidence, that the previous lawful use of the property was as a multiple-occupancy dwelling. He further found that, although the enforcement notice did not detail the specific steps to be taken by the appellant in order to return the property to a multiple-occupancy dwelling, the intention behind the order was clear, and it was to the appellant’s benefit that specific actions were not itemised. The appellant appealed under section 289 of the Town and Country Planning Act 1990. It claimed, inter alia, that: (i) on the evidence, the inspector had not been entitled to conclude that the previous lawful use was as a multiple-occupancy dwelling; (ii) he had misdirected himself as to the burden of proof in finding that the appellant was obliged to show that the previous use was not as a multiple-occupancy dwelling; and (iii) he had been in error in finding that the enforcement notice was valid because it failed sufficiently to identify the steps that the appellant would have to take in order to comply with it. Held: The appeal was dismissed. 1. Although it might have appeared unusual for a local planning authority to require a property comprising a number of small flats to be returned to a multiple-occupancy dwelling with shared amenities (that is, bedsits), that decision was in line with the requirement for affordable housing in the authority’s unitary development plan. Such use was lawful because it was recognised in their planning policies and it was a distinct legal category subject to statutory control. 2. The planning authority had adduced evidence to support their contention that the property had previously been used for multiple-occupancy dwelling. The inspector had been correct to hold that the appellant was obliged to disprove that assertion because the proceedings before him were a statutory appellate procedure, albeit on an informal basis. In those circumstances, an appellant was obliged to prove its grounds of appeal, and the inspector had been entitled to find, in the present case, that it had not done so. 3. The enforcement notice was valid. No precise method of rearranging the property had been identified, although the purpose of the rearrangement was clear. This lack of specification was to the appellant’s benefit because it was able to carry out the least amount of work necessary in order to comply. Mary Macpherson (instructed by Adler & Co) appeared for the appellant; Michael Gibbon (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented. Vivienne Lane, barrister