Planning control – Residential property – Injunction – Respondents issuing enforcement notice precluding commercial use of residential property – First appellant occupier failing to comply with notice – Respondents obtaining interim and permanent injunctions prohibiting unauthorised use – Appellants seeking to quash injunction — Whether enforcement notice null — Whether uncertainty rendering enforcement notice unenforceable — Appeal dismissed
The first appellant occupied a substantial London property, albeit not permanently. The owner did not take part in the proceedings. Planning permission had been granted in 1960 to use the premises for diplomatic purposes with a condition (condition 2) that, on termination of those uses, the premises should not be used for any purpose other than residential use or some other previously approved purpose.
The respondent local authority considered that the condition had been breached and identified various material changes of use of the property, including use as a venue for filming, parties with dinner and music, a nightclub, exhibitions and a fashion show. They claimed that those uses had resulted in a loss of housing and affected neighbouring residential amenity to an unacceptable degree. In June 2006, they issued a planning enforcement notice on the owner of the property and the first appellant, as occupier, requiring them to comply with planning control.
In January 2010, following complaints from residents that continuing commercial activities were causing unacceptable noise and disturbance, the respondents obtained an interim injunction, under section 187B of the Town and Country Planning Act 1990, restraining the first appellant from committing further breaches of planning control on the basis that he had authorised those activities or could have prevented them.
The first appellant did not appeal against that injunction. However, when the respondents applied to continue the injunction on a permanent basis, he sought to have it discharged. The High Court granted a permanent injunction forbidding the use of the property for commercial or non-residential purposes and from undertaking any development of the property without an express grant of planning permission on the basis that the various planning assessments or conclusions contained in the enforcement notice could not be challenged: see [2010] EWHC 2016 (QB); [2010] PLSCS 228.
The appellants appealed, contending that the enforcement notice was null and that the uncertainty created by the words “such other purpose as shall have been previously approved by the Council” in condition 2 rendered the notice unenforceable.
Held: The appeal was dismissed.
(1) Condition 2 had ceased to operate as a planning condition when the diplomatic use of the property ceased. As a condition attached to a personal diplomatic permission, it did not in itself create a permanent restriction attaching to the land: Newbury District Council v Secretary of State for the Environment [1981] AC 578 applied.
The issue was whether a citation of and a purported reliance in the enforcement notice on a condition that was no longer operative rendered the enforcement notice a nullity. That question could be decided on a case-by-case basis by reference to the requirements of section 173 of the 1990 Act. The court had to have regard to the interests of the property owner. However, the state could control the use of the property in accordance with the general interest as provided in Article 1 of the First Protocol to the European Convention on Human Rights, the requirements of which, for an enforcement notice, were set out in section 173 of the 1990 Act.
In the instant case, the enforcement notice complied with the requirements of section 173. The matters that the respondents deemed a breach of planning control were plainly stated, that is, the use of the premises for commercial and non-residential activities. That enabled any party on which a copy of it was served to know what those matters were. The notice also included the activities that the respondents required to cease, namely the use of the property for commercial and other non-residential uses. The purpose was to remedy the breach of planning control by discontinuing the use, and the date on which the notice was to take effect was the time for compliance. That information having been given, the notice was not rendered waste paper by the references to condition 2 and the restriction contained in it. Although those references were inappropriate, they did not detract from the plain statement that the premises should not be used for any other purpose than residential: Miller-Mead v Minister of Housing and Local Government (1963) 185 EG 835 applied, Broadland District Council v Trott [2011] EWCA Civ 301; [2011] PLSCS 82 considered.
(2) The words “such other purpose as sham have been previously approved by the council” in condition 2, a clause intended to make clear the respondents’ power to grant further permission, did not nullify the notice. The requirement in the notice was clear and plainly assumed that there was no permission beyond that for residential purposes. On the judge’s findings of fact, an injunction was appropriate to end blatant infringements of planning control. The enforcement notice was not a prerequisite of an injunction and the nature of the objections to the notice was such that the granting of an injunction was appropriate even if the notice had been a nullity. The permitted use of the property was clear and the respondents’ right to an injunction could not be defeated by an assertion that broader uses were permitted.
Juan Lopez (instructed by LT Law) appeared for the appellant; Saira Kabir Sheikh (instructed by the legal department of Westminster City Council) appeared for the respondents.
Eileen O’Grady, barrister
