Nestorova-Goremsandu v Secretary of State for Communities & Local Government & Anor [2010] EWHC 793 (Admin)

Case No CO/7317/2009

[2010] EWHC 793 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

IN THE MATTER OF AN APPEAL UNDER SECTION 289 OF THE TOWN AND COUNTRY PLANNING ACT 1990

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16 April 2010

Before

THE HONOURABLE MR JUSTICE SILBER

Between

KATYA STOILOVA NESTOROVA-GOREMSANDUAppellant

SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENTFirst Respondent

LONDON BOROUGH OF HARROWSecond Respondent

Toby Fisher (instructed by Richards Solicitors) for Appellant

Sarah Hannett (instructed by The Treasury Solicitor) for First Respondent

for The Second Respondent was not represented at the hearing and made no submissions.

Hearing Hearing date: 9 March 2010

Judgment

Mr. Justice Silber:

I. Introduction

[1]Katya Stoilova Nestorova-Goremsandu (“the Appellant”) appeals pursuant to section 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) against two decisions of the planning inspector (“the Inspector”) of the First Respondent, the Secretary of State for Communities and Local Government (“the Secretary of State”) both of which were dated 17 June 2009. By the first decision (“the Decision Letter”), the Inspector dismissed the Appellant’s appeal against an enforcement notice issued by the London Borough of Harrow (“the Second Respondent”) on 31 July 2008 (“the Enforcement Notice”). By the second decision, the Inspector ordered that the Appellant pay the costs incurred in defending the Appellant’s appeal (“the Costs Decision Letter”).

[2]The Appellant appeals against both decisions. By an application notice dated 17 September 2009, the Appellant sought leave to amend her grounds of appeal. Pitchford J (as he then was) granted permission to amend the grounds of appeal as well as permission to appeal against both decisions on 25 September 2009.

[3]The amended grounds of appeal are that:(a) In dismissing the Appellant’s appeal under ground (d) of section 174 (2) of the 1990 Act against the Enforcement Notice, the Inspector: (a) failed to take into account a material consideration, namely the evidence of Mr Hassan of Fika Construction that he had carried out building works on the extension in March 2004 (“The Hassan Evidence Issue”); and failed to give adequate reasons for her decision (“The Reasons Challenge Issue”); and

(b) In determining to make an order of costs against the Appellant in favour of the Second Respondent, the Inspector erred in finding that it was unreasonable to pursue the appeal under section 174(2) (f) in that her judgment was based on a material error of fact (“The Costs Issue Appeal”).

[4]I add that the appellant originally had other grounds of appeal but these were abandoned at the hearing. The First Respondent resists both appeals.

II. Legal Background

[5]Planning permission is required for the development of land: section 57(1) of the 1990 Act. The making of a material change in use of land constitutes development, section 55(1) of the 1990 Act. Pursuant to section 171A (1) of the 1990 Act, carrying out a development without the required planning permission constitutes a breach of planning control.

[6]Section 172(1) of the 1990 Act empowers a local planning authority to issue an enforcement notice where it appears to them that there has been a breach of planning control and that it is expedient to issue the notice.

[7]Section 174 of the 1990 Act permits a person having an interest in land to appeal to the Secretary of State against the issue of an enforcement notice. An appeal may be brought on the grounds set out in section 174(2), which so far as is material, provides that:

“An appeal may be brought on any one of the following grounds— (a) that in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged… (d) that at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters… (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach…”

[8]Section 171B of the 1990 Act deals with time limits for enforcement action and thus it relates to the ground (d) appeal. Subsection (1) provides that:

“Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.”

[9]I will return in paragraph 34 below to explain what is meant by those last two critically important words “substantially completed”.

[10]Section 289 of the 1990 Act in turn permits an appeal against the decision of the Secretary of State on a point of law to the High Court. Section 289(6) requires an appellant to obtain leave of the Court. An order of an Inspector that one party is to pay the costs of another party to an enforcement appeal can be the subject of an appeal under section 289 of the 1990 Act, (Botton v. Secretary of State for the Environment

[1992] PLR 1

[11]The following propositions of law are relevant to the determination of the appellant’s appeals under section 289 of the 1990 Act:(a) Matters of planning judgment are within the exclusive province of the Inspector. The weight (if any) to be attached to a material consideration in determining a planning appeal is entirely a matter for the decision-maker (Tesco Stores Ltd. v. Secretary of State for the Environment

[1995] 1 WLR 759

, per Lord Keith at p. 764G-H and per Lord Hoffman at p. 780 F-H).

(b) Decision letters should be read in a “straightforward down-to-earth” manner “without excessive legalism or exegetical sophistication” (Clarke Homes v Secretary of State for the Environment(1993) 66 P. & C.R. 263, per Sir Thomas Bingham MR at pp. 271-272).

III. Factual Background

[12]The appellant is the joint owner, with her son, of 85A Whitchurch Lane, Edgware (“the Land”), which comprises a bungalow, with a conservatory, that is linked to an extension described as a “single storey extension under a hipped roof incorporating a dormer with part of the development under a flat roof linked to a bungalow via an existing conservatory” (“the Extension”). On 24 May 2006, the Second Respondent refused an application for planning permission for the retention of a single storey rear extension with dormer and first floor terrace. On 10 November 2006, the Second Respondent refused an application for planning permission for the retention of the Extension, as modified, the demolition of the conservatory and the erection of a 1.8 metre wall/fence along the Montgomery Road frontage.

[13]The appellant’s appeal against the latter decision was dismissed by a Planning Inspector on 27 September 2007 in which he explained that the appeal was retrospective as “the development is in an advanced state of construction” ( DL 3). In addition he stated that “if completed in accordance with the plans which relate to the appeal, would benefit from a pitched roof with hipped gables; communicate with the existing building via a brick and pitched roof link; and comprise a bedroom, living room, kitchen, bathroom and lobby” (DL 3). The Inspector concluded by stating that the development “appears visually intrusive and overbearing, and harms the character and appearance of the existing dwelling and the surrounding area” (DL 4).

[14]On 22 October 2007, the Appellant applied for planning permission for the retention (with modification) of the Extension again. On 6 November 2007, the Second Respondent declined to determine that application in accordance with section 70A of the 1990 Act. On 26 February 2009, the Second Respondent declined to determine a yet further application for planning permission in accordance with section 70A of the 1990 Act, which was received by it on 12 February 2009.

[15]The Second Respondent then issued the Enforcement Notice in relation to the Land on 31 July 2008 for an alleged breach of planning control on the grounds that the Appellant was responsible “without planning permission [for], the erection of a single storey rear extension with dormer window (“the Unauthorised Development”) on the Land attached to the dwelling via an existing conservatory link”. The Enforcement Notice required the Appellant to “demolish the Unauthorised Development” and to “permanently remove from the Land all debris and materials resulting” from the demolition of the Unauthorised Development. The time period for compliance was three months after the Enforcement Notice took effect on 12 September 2008.

[16]By a notice of appeal dated 5 September 2008, the appellant appealed against the Enforcement Notice on grounds (a) and (d). The appellant applied to amend her appeal on 13 February 2009 to include a ground (f) appeal while at the outset of the Inquiry the appellant withdrew her appeal on ground (a).

IV. The Evidence before the Inspector

[17]In order to succeed on the ground (d) appeal, the appellant had to demonstrate that the Extension was “substantially complete” pursuant to section 171B(1) of the 1990 Act prior to 31 July 2004, which was four years before the date of the Enforcement Notice, which was dated 31 July 2008.

[18]The appellant’s case on ground (d) was that the work on the Extension commenced in late 2001 and that it was materially complete by 15 January 2002 which was obviously more than four years prior to the date of issue of the Enforcement Notice. She relied on the following evidence in support of her ground (d) appeal:(a) Oral and written evidence from Mr Hassan which I will return to consider in paragraph 28 below and which is at the heart of the appeal;

(b) Oral and written evidence from Mr Georgio, the owner of a local restaurant;

(d) Invoices produced by Fika Construction, by Apex Garden & Building Materials, by P Aramides and by Brothers Harizanovi; and

(e) Declarations from EuroScrews Limited, Nayna Patel, Mr Nazilvatan, Mehmet and Mr S Patel.

[19]In opposition, the Second Respondent relied on various types of evidence to show that the Extension was not substantially complete by July 2004 and they were:(a) Aerial photographs dated 13 July 2003 and 1 July 2006 with the earlier one showing that the Extension did not exist in 2003. The date of the aerial photographs had been verified by the independent company producing them;

(b) Photographs taken of the extension on 16 January 2006 that were said to show that “works on the extension were in progress but not completed”; and

[20]The Inspector dismissed the Appellant’s appeal by a decision letter dated 17 June 2009. The Inspector ordered that the appellant pay the costs of the Second Respondent occasioned in defending the appeal. The appellant appeals against both decisions.

V. The Inspector’s Decision Letter

[21]The Inspector, who had heard evidence at the Inquiry on oath or by solemn declaration, set out the Appellant’s case which was first, that construction work on the Extension was materially complete by 15 January 2002, second that the Extension was initially built of second-hand materials that subsequently leaked with the result that the roof timbers and windows were replaced, and third that the Extension only became visible when the vegetation was cut back in the Appellant’s garden.

[22]The Inspector placed considerable weight on four items of evidence which satisfied her that the Extension did not exist for more than four years prior to the issue of the Enforcement Notice. First, there was an aerial photograph produced by the Second Respondent that showed that there was no extension on the Land in the photograph which the Inspector was satisfied had been taken on 13 July 2003. Second, there were photographs produced by the Second Respondent dated 16 January 2006 that showed that works on the Extension were in progress at that time, but were not substantially complete. The Inspector noted: “In particular, there is no evidence of electrical or other services (electrical equipment being used for construction purposes appears to be connected to long extension leads from the main property); there is no evidence of internal walls; there is no evidence of internal fittings or kitchen units; there is no evidence of internal decoration such as plastering or painting yet when I visited the site I saw that it is plastered throughout with heavily moulded plasterwork on the ceilings. In my conclusion, the 2006 photographs clearly indicate an extension in the process of being constructed, as opposed to one which is having its roof and windows replaced.”(DL14)

[23]Third, the Inspector attached importance to the fact that the Second Respondent produced records of complaint dating from December 2005 and January 2006 “indicating that a new building was being constructed”. Finally she placed significant weight on the fact that an Inspector in 2007 had described the Extension as being “in an advanced state of construction”. The Inspector noted that this was “indicative of an extension in the process of being constructed, as opposed to one which is having its roof and windows replaced” (DL16).

[24]The Inspector explained that she was not assisted by evidence adduced by the appellant as she concluded that she placed little weight on the evidence of Mr Georgio given his inability to remember precise dates and his concession that if the date of the aerial photograph was correct, then his recollection must be wrong. Second, she attached little weight to the evidence of Mr Williams as he said first that the Land was “like a jungle and that he could not see anything from the street” and additionally that he had not been to the Land in 2006 (DL 13). Then, in relation to the suggestion that the photographs taken in 2006 showed a roof and windows being replaced on an existing structure, the Inspector concluded that “on the balance of probability, it is therefore highly unlikely that the entire roof would need to be replaced after a period of about only 4 years”(DL14).

[25]According to the Inspector, little weight could be placed on the declarations made by Nayna Patel, Mr Nazlivatan, Mehnaf, Mr S Patel, Euro Screw Ltd and from a resident of 38 Whitchurch Lane as they were imprecise in relation to dates. Further, none of the makers of the declarations had attended at the Inquiry to give evidence under oath. She also considered that the handwritten receipts for building materials purchased from a builder’s merchant gave no indication that the Extension was built or completed in 2002.

[26]The Inspector concluded that: “As a matter of fact and degree, and on the balance of probability, the extension did not exist for more than 4 years prior to the issue of the Notice but rather there is clear evidence of the extension being constructed in late 2005 and nearing completion in September 2007.”(DL 20)

VI. The Hassan Evidence issue

[27]Mr Toby Fisher counsel for the appellant contends that the Inspector erred in law by failing to take into account the evidence provided by Mr. Fikrat Hassan when deciding the Ground (d) appeal as it was relevant. It is, of course, settled law that the Secretary of State’s Inspector had to take into account all relevant material (see Ashbridge Investments Ltd v Minister of Housing

[1965] 1 WLR 1320

[28]Mr Fisher contends that although some of the evidence provided by some of the appellant’s witnesses was far from conclusive, the evidence of Mr Hassan was robust as he provided a signed declaration stating that he had repaired the roof of the Extension in March 2004 and that had replaced the roof in 2006. He also gave oral evidence under oath confirming that he worked on the Extension in March 2004. The significance of his evidence was that he was the only witness to give oral evidence to the Inspector that he had personally worked on the Extension prior to August 2004.

[29]It is correct, as Mr Fisher submits, that the Inspector first failed in the decision letter to refer to the evidence of Mr Hassan at all and second, as I have explained, she gave reasons for rejecting the evidence of all the appellant’s witnesses, except Mr Hassan. Thus it is said by Mr. Fisher that the Inspector erred by failing to refer to the evidence of Mr Hassan, which was of substantial, if not critical, importance.

[30]Mr Fisher stresses that the only possible explanation for the Inspector’s failure to refer to Mr Hassan’s evidence in her Decision Letter is that she failed to take it into account. He further submits that where a decision-maker fails to take into account a material consideration when coming to a decision, a court should quash the decision unless it is persuaded that the decision-maker “would inevitably” have “come to that conclusion in any case” and that it is not enough for the Secretary of State to show that the Inspector would “probably” have come to the same conclusion (for example R v Secretary of State for the Environment Ex parte Brent London Borough Council

[1982] QB 593

, 646).

[31]I have come to the clear conclusion that the Secretary of State can satisfy that requirement in the particular circumstances of this case as the Inspector would inevitably have rejected the appellant’s appeal because it must not be forgotten that the case for the appellant was that in the words of paragraph 10 of the Decision Letter that “the constructional work on the Extension subject of this appeal commenced in late 2001 and was materially complete by 15 January 2002”. The Inspector as the designated fact-finder found that the aerial photographs submitted by the second respondent showed that there was no extension on the site in the photograph dated 2003. She added that although the date of the photograph was challenged, she was satisfied that the date had been confirmed by an independent company. Indeed there is a letter dated 2 April 2009 from Bluesky International Limited, which confirms that the photograph was taken on 13 July 2003. It was not suggested that this company was not independent of the Secretary of State or of the Second Respondent or that this evidence was flawed in any way.

[32]The evidence of Mr Hassan even if uncritically accepted does not undermine that evidence. I am therefore unable to accept the submission of Mr Fisher that Mr Hassan’s evidence somehow undermines the contention that the photographs were taken in 2003 but that submission cannot be correct because Mr Hassan’s evidence relates to matters which occurred more than 6 months after the photographs were taken.

[33]That conclusion means that the appeal must be dismissed but out of deference to Mr Fisher’s submissions, I should say that even if that conclusion was incorrect, I would still have dismissed the appeal. It must not be forgotten that there was no evidence that the Extension was constructed at any time after January 2002. Indeed, even if I had accepted without any reservation every aspect of the written and oral evidence of Mr Hassan, that would not have led to the appeal being allowed because it cannot be shown that the Extension had been “substantially completed” prior to 5 August 2004. In this connection it is necessary to explain what is meant by the words “substantially completed”.

[34]These critically important final words “substantially completed” in section 171B(1) of the 1990 Act were the considered by the House of Lords in Sage v. Secretary of State for the Environment, Transport and the Regions

[2003] UKHL 22

;

[2003] 1 WLR 983

. Lord Hobhouse (with whom Lords Nicholls, Hope, Scott and Rodger agreed) held that section 171B(1) required a holistic approach (see paragraphs 22-25). If a building operation for which planning permission is granted is not carried out, both externally and internally, fully in accordance with the planning permission, the whole operation is unlawful. The same approach was appropriate in applying the test under section 171B(1) of the 1990 Act (at paragraphs 23-24). Lord Hope explained that “…regard should be had to the totality of the operations which the person originally contemplated and intended to carry out” (at paragraph 6).

[35]It is settled law that the burden of proof is on the appellant to show that reliance can be placed on ground (d) (see Nelsovil Limited v Minister of Housing and Local Government

[1962] 1 WLR 404

). It is important to bear that in mind when considering Mr. Fisher’s submissions in relation to Mr. Hassan’s evidence.

[36]The evidence of Mr Hassan contained in his written statement refers to carrying out repairs to the roof in March 2004 and to replacing the roof in 2006 but neither of those points establishes or goes anywhere near establishing that the Extension was substantially completed in January 2002, which was the Appellant’s case. I am fortified in reaching that conclusion by the fact that in his oral evidence Mr Hassan was questioned on various matters relating to the internal state of the Extension. His evidence on this was inconclusive and indeed on the issue of the presence of a kitchen, it was confused. He said both that there was no kitchen at the Extension in 2006 and that he did not know whether there was a kitchen. Mr Hassan also referred to seeing some furniture being inside the Extension but he could not remember whether the Extension was painted or plastered. He also gave evidence that there were two light switches behind a door but he was unsure whether there was a carpet. There was no evidence that there was effective lighting in the Extension.

[37]I conclude that in the absence of any information relating to the nature of the building which is alleged to have been “substantially completed” prior to 31 July 2004 , the evidence of Mr Hassan even assuming that it was uncritically accepted would have made no difference to the outcome as the Inspector would undoubtedly still have dismissed the appeal.

[38]I therefore reject this ground of challenge.

VII. The Reasons Challenge Issue

[39]It is contended by Mr Fisher that the reasons provided in the Inspector’s substantive decision in relation to the rejection of the Ground (d) appeal are inadequate. His case is that the reasons for the dismissal of the appeal must deal with the main issues that have been raised and they ought to explain why those issues have been determined in the way they have. In support, he relies on the well-known comments made by Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR at 1964 D-G where he said in a passage of his speech with which other members of the Appellate Committees agreed that:- “30.The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognizing that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision” .

[40]Applying those principles to this case, the Inspector’s findings as to why she dismissed the appellant’s ground (d) are both comprehensive and comprehensible. The Appellant can be in no doubt as to why the Inspector dismissed her appeal as the reasons were first that the Extension was not substantially completed in January 2006 and therefore was not substantially complete four years prior to the date on which the Enforcement Notice was served and second that the Inspector rejected the appellant’s case that she constructed the Extension in 2002 because of, among other factors, the presence of the aerial photographs which showed that there was no Extension on the site in the photograph dated 2003.

[41]Thus, not only have adequate reasons been given but in addition, the reasons challenge falls a long way short of the high threshold explained by Lord Brown that such a challenge will only succeed if “the party aggrieved can satisfy the court that he has been genuinely substantially prejudiced by the failure to provide an adequately reasoned decision”. In this case no substantial or indeed any prejudice on the part of the Appellant has been alleged or shown and so this ground must be rejected.

VIII. The Costs Issue Appeal

[42]By way of background, I should explain that section 250(5) of the Local Government Act 1972 enables the Secretary of State to make an order as to the costs of the parties at Inquiries. Government policy in relation to awards of costs on appeal brought under section 174 of the 1990 Act prior to 6 April 2009 is set out Circular 8/93 (Department of the Environment) (“the Circular”). It is common ground that the default rule in planning appeals is that parties normally meet their own costs but Annex 1 to the Circular provides that costs should only be awarded where “unreasonable behaviour” is alleged to have occurred.

[43]The basis of this submission of the Appellant is that in paragraph 23 of the Decision Letter (not the Costs Decision Letter) , the Inspector erred when she found that:- “the removal of the dormer windows and the creation of a pitched roof were considered by the previous Inspector in 2007 and rejected and there has been no material change in circumstances since that time. To my mind, the proposed removal of these elements together with the removal of the single flat roof part of the Extension would not reduce the depth of the main body of the extension which would remain at 9m”.

[44]The case for the appellant is that in so finding the Inspector made a significant error of fact as the depth of the Extension had never been 9 metres but it had been 5 metres deep. Mr Fisher proceeds to submit that although the Inspector’s decision on the ground (f) appeal was ultimately a matter of planning judgment and the difference between an extension with a depth of 9 metres of 5 metres may not have had any impact on her final decision on the planning merits, this error of fact may have had an impact on the Inspector’s assessment of whether the ground (f) appeal was reasonable.

[45]I am bound to say that I find this submission a little strange because no appeal is pursued under section 289 of the 1990 Act against the Inspector’s substantive finding rejecting the ground (f) appeal. It is noteworthy that the Inspector refers to the “depth of the main body of the Extension” being 9 metres where she was referring to the total depth of the existing conservatory link and to the Extension and the agreement of those figures in the Statement of Common Ground.

[46]But even if that is incorrect and the Inspector had erred in referring to 9 metres and not to 5 metres as is contended by the Appellant, the decision to award costs does not constitute an error of law because the Inspector was considering whether the Extension constituted permitted development under Article 2 of the General Permitted Development Order 1995, which provides that planning permission is granted for the classes of development described as permitted development in schedule 2.

[47]Part 1 of Schedule 2 deals with the development within the curtilage of a dwelling house and Class A of Part 1 provides that “the enlargement, improvement or other alteration of a dwelling house” is a permitted development. This is subject to a large number of exclusions including where the enlarged part of the dwelling house, if single storey, extends beyond the rear wall of the original dwelling house by more than 4 metres (paragraph A.1 (d) and (e)). Thus, even if the depth of the Extension was 5 metres and not 9 metres this would not constitute permitted development.

[48]I have come to the conclusion that the Inspector’s conclusion that it was therefore unreasonable for the appellant to run the ground (f) point at the inquiry notwithstanding that she was out with the requirements of permitted development did not constitute an error of law. I should also add that any court should be reluctant to overturn a finding on a costs issue and in this case all the decisions of the Inspector on the costs issues cannot be properly impugned.

[49]For all those reasons notwithstanding the able submissions of Mr Fisher, these appeals must be dismissed.