Town and country planning – Enforcement notice – House in multiple occupation – Second respondent sub-dividing and converting house without planning permission – Appellant issuing enforcement notice for breach of planning control – Inspector appointed by first respondent secretary of state quashing notice – Appellant appealing – Whether inspector erring in law – Whether inspector giving sufficient reasons for decision – Appeal dismissed
The second respondent owned a house at 111 The Ryde, Hatfield which he converted into four self-contained bedsitting rooms and two further bedrooms, which were not self-contained. There was a bathroom on the first floor and a kitchen and lounge/diner on the ground floor, all of which were accessible to all occupiers of the house. The rear garden and forecourt parking area were also available for use by all occupiers.
The appellant local authority issued an enforcement notice on the basis that those arrangements had resulted in the sub-division of the house into five self-contained flats, in breach of planning control. The second respondent challenged that notice.
An inspector appointed by the first defendant secretary of state visited the site and concluded that the site was now in use as a house in multiple occupation (HMO) for not more than six residents within the meaning of section 254 of the Housing Act 2004, which fell within the scope of Use Class C4 in schedule 1 to the Town and Country Planning (Use Classes Order) 1987 (as amended).
Therefore, the enforcement notice was incorrect and the breach of planning control was, in fact, a change of use to an HMO within Use Class C4. As the enforcement notice could not be corrected without causing injustice, it would be quashed.
The appellant appealed against that decision under section 289 of the Town and Country Planning Act 1990. The appellant contended that the inspector had erred in law or, alternatively, had given insufficient reasons for his decision.
Held: The appeal was dismissed.
(1) The question whether the property was being used as a single dwellinghouse was a question of fact and degree to be determined by the secretary of state on the basis of the facts found by the inspector and accepted by him. That involved the application of a legal test. If the secretary of state applied the correct test, the court, on an appeal under section 289, could only interfere with his decision if the facts found were incapable of supporting it. If, on the other hand, he applied an incorrect test, the court could interfere and itself apply the correct test to the facts found. One had to have regard to an appropriate degree in each case, to both the physical state of the premises and their user, actual, intended and/or attempted: Gravesham Borough Council v Secretary of State for the Environment (1984) 47 P&CR 142, Moore v Secretary of State for the Environment [1998] 2 PLR 65 and R (Grendon) v First Secretary of State [2007] JPL 275 considered.
The reasons for a planning appeal decision had to be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the principal important controversial issues. The reasons need refer only to the main issues in the dispute; not to every material consideration. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, but such an adverse inference would not readily be drawn: St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; [2017] PLSCS 196 followed.
(2) An appeal under section 289 of the 1990 Act proceeded on a point of law only. The question of law here was whether the inspector erred in concluding that the breach of planning control was best described as (without planning permission) a change of use to a small HMO falling within Use Class C4.
The inspector concluded that the house fell within the definition of an HMO in section 254 of the 2004 Act because it satisfied the ”converted building test” in section 254(4). The inspector appeared to have assumed, without any direct evidence, that those in occupation of the house resided there as their only or main residence, that they did not form a single household and that at least one of them paid rent. He was reasonably entitled to proceed on those assumptions without the need for direct evidence to substantiate them, given that the appellant had not argued that those common requirements of sections 254(2) and 254(4) were unfulfilled in this case.
Section 254 provided the definition of a “house in multiple occupation” for the purposes of determining whether a dwellinghouse was being used as a small HMO and It was possible, at least in principle, for a house to remain in use as a single dwellinghouse falling within the scope of Use Class C4, notwithstanding that it included a mixture of both self-contained and shared residential accommodation. It was for the decision maker to judge, on the facts, whether such a building remained in use as a single dwellinghouse; or whether the provision of self-contained units of residential accommodation within that building had resulted in its sub-division into two or more separate dwellinghouses. Accordingly, the house in its converted state was at least capable of falling within the scope of Use Class C4.
(3) It was reasonably open to the inspector to conclude the house was in fact being used as small HMO within Use Class C4, given the existence of communal facilities at the property which were available for use by all of those in occupation, including those occupying the four self-contained bedsits. On a fair reading of his decision, the inspector had considered and rejected the appellant’s case for subdivision of the building into multiple dwellinghouses on the basis that, on the evidence, all occupiers of the residential accommodation produced by conversion of the house had the use of the shared or communal facilities.
The inspector was entitled to conclude that the change of use without planning permission which had occurred at the site was best described as a change of use to an HMO for not more than six residents (Use Class C4). Therefore, there was no basis for questioning the validity of the inspector’s refusal to exercise his power to correct the enforcement notice by amending the alleged breach of planning control.
Riccardo Calzavara (instructed by Welwyn Hatfield Borough Council Legal Services) appeared for the appellant; Horatio Waller (instructed by Government Legal Department) appeared for the first respondent; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
