Planning control – Residential property – Injunction – Claimant authority issuing enforcement notice precluding commercial use of residential property – First defendant occupier failing to comply with notice — Claimants obtaining interim injunction prohibiting unauthorised use — Applicant seeking permanent injunction – Whether enforcement notice constituting a nullity – Claim allowed
The first defendant occupied, albeit not permanently, a substantial London property. The owner did not take part in the instant proceedings. Planning permission had been granted to use the premises for diplomatic purposes, with a condition that on termination of the uses, the premises should not be used for any purpose other than residential use or some other previously approved purpose.
The claimant local authority subsequently considered that the condition had been breached and identified various material changes of use of the property, including use of the property as a venue for filming, parties with dinner and music, a nightclub, exhibitions and a fashion show. They claimed that those commercial and non-residential uses 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 defendant, as occupier, requiring them to comply with planning control.
In January 2010, following complaints from residents that commercial activities continued to take place at the property, causing unacceptable noise and disturbance, the claimants obtained an interim injunction, under section 187B of the Town and Country Planning Act 1990, restraining the first defendant from committing further breaches of planning control on the basis that he had authorised those activities or could prevent them.
The first defendant did not appeal against that injunction. However, when the claimants applied to continue the injunction on a permanent basis, he sought to have it discharged on the ground that the enforcement notice was null because the claimants had neither correctly identified nor properly assessed any actual or apprehended breach of planning control.
He argued that the hiring out of one’s home or part of it could be consistent with and ancillary to ordinary residential use and that the property had always been used as a grand London town house for entertaining guests. The applicant contended that the various planning assessments or conclusions contained in the enforcement notice were not open to challenge.
Held: The claim was allowed.
The enforcement notice was valid since it informed the recipients fairly what they had done wrong and how they could remedy it. If an enforcement notice had not been quashed, the landowner had to obey it: Miller-Mead v Minister of Housing and Local Government (1963) 185 EG 835 applied; R v Wicks [1997] 2 PLR 97 followed; Staffordshire County Council v Challinor [2007] EWCA Civ 864; [2008] 1 P&CR 10 considered.
The enforcement notice, since it was valid and had not been appealed, crystallised the position at that time, so that the only authorised use was residential. It was notable that, in the four intervening years, the claimants had not receive an application for planning permission to use the premises or any part of them for purposes other than residential, even though they had informed the first defendant that he could apply for a change of use or for a certificate of lawfulness for any existing or proposed use.
The claimants had established that the enforcement notice had been breached because parts of the premises had been used for commercial purposes that were not ancillary to a residential use. Furthermore, the obligations imposed by the interim injunction had been ignored. The claimants were under a duty to enforce planning control and this could not be achieved that effectively without the grant of a permanent injunction prohibiting unauthorised commercial or non-residential use of the property.
Per curiam: The court did not underestimate the burden of maintaining such a large property but it was for the first defendant to seek planning permission for the activities that he wanted to pursue.
Saira Kabir Sheikh (instructed by the legal department of Westminster City Council) appeared for the applicant; Juan Lopez (instructed by LT Law) appeared for the defendant.
Eileen O’Grady, barrister
