Koumis v Secretary of State for Communities and Local Government [2012] EWHC 2686 (Admin)

[2012] EWHC 2686 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue The Royal Courts of Justice,, Strand, London WC2A 2LLDate 5 October 2012
Before
THE HONOURABLE MR JUSTICE WALKER
Case No CO/4116/2011
Between
Andy KOUMISAppellantSECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTRespondentLONDON BOROUGH OF ENFIELDInterested Party
Mr Richard Turney (instructed by Kingsley Smith LLP) for AppellantMr Richard Honey (instructed by the Treasury Solicitor) for RespondentMs Emmaline Lambert (instructed by the London Borough of Enfield) for Interested PartyHearing Hearing dates: 8 and 9 May 2012
Judgment

Introduction

[1]These two cases concern admitted breaches of planning control. The appellant in each case is Mr Andy Koumis. In his capacity as proprietor of Connoisseur Developments he is the owner, and was responsible for the construction, of a building (“the building”) containing 11 flats at 16-18 Hazelwood Lane, London, NW13 (“the site”). On 31 August 2005, prior to construction of the building, planning permission (“the 2005 permission”) was granted by the London Borough of Enfield (“Enfield”). It was for 9 flats only and imposed a height limit. The precise terms of that limit are in dispute, but on any view the flats as built exceed the limit. Retrospective planning permission was sought in October 2007. It was refused on 14 January 2008. An enforcement notice was issued on 17 June 2008. Mr Koumis appealed against the enforcement notice and refusal of planning permission. An inspector appointed by the Secretary of State issued decisions (“the initial decisions”) on 19 February 2009 dismissing those appeals. However when those decisions were challenged it was agreed that they could not stand, and they were quashed by consent. The appeals then came before another inspector (“the Inspector”) who held an inquiry (“the Inquiry”) on 22 and 23 March 2011. In a decision letter dated 8 April 2011 (the “Decision Letter”) the Inspector dismissed both appeals. As regards the enforcement notice she nevertheless made one correction and 4 variations.[2]There is now before the court an application (CO/4116/2011) by Mr Koumis to quash the decision of the Inspector as regards the refusal of retrospective planning permission. Under s 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) Mr Koumis is entitled to bring that application as of right. As regards the enforcement notice, under s 289 of the 1990 Act Mr Koumis brings an appeal (CO/4118/2011) from the Inspector’s decision. I grant leave for that purpose under section 289 (6).[3]The court has been assisted by skeleton arguments and oral submissions from Mr Richard Turney for Mr Koumis, Mr Richard Honey for the Secretary of State, and Ms Emmaline Lambert for Enfield. Each also provided written submissions after the hearing. There were 5 grounds of challenge as regards one or other or both of planning permission and the enforcement notice. For present purposes I summarise those concerning planning permission first before turning to those concerning the enforcement notice.[4]As regards planning permission, there are 2 grounds of challenge. Mr Turney submits in Ground 1 that the Inspector’s analysis of the impact of the building on the site was predicated on an incorrect assumption about the height of the scheme which had been approved under the 2005 permission. Alternatively he submits that the Inspector’s interpretation of the 2005 permission was wrong in law.[5]Ground 2 begins with a submission that in deciding whether to grant planning permission for the scheme as built, the Inspector was required to consider the extent to which and the manner in which it differed from the scheme which could be created if the enforcement notice was upheld. It is then submitted that the Inspector erred in law in failing to have regard to this material consideration and failing to give reasons for rejecting the argument.[6]As regards the enforcement notice, in Mr Turney’s initial skeleton argument Ground 1 was again relied upon. In addition, three further grounds were relied upon – Grounds 3, 4 and 5.[7]Ground 3 concerned the period allowed for compliance with the enforcement notice. In the enforcement notice a period of 3 months was allowed. Enfield conceded that a period of 6 months would be appropriate. At the Inquiry Mr Turney contended that 20 months should be allowed. He noted that under section 174(2)(g) of the 1990 Act an appeal may be brought against an enforcement notice on the ground that the period specified for compliance “falls short of what should reasonably be allowed.” The Inspector had not allowed him to advance such an appeal, saying that no such ground had been relied upon when making the appeal, that ground (g) had first been relied upon in January 2011 when a period of 12 months was sought, and that it was too late for Mr Koumis to raise the matter at the Inquiry. Mr Turney’s initial skeleton argument said that Mr Koumis was entitled to raise a ground (g) appeal at any point in the procedure, and did so in sufficient time to allow Enfield to address the issue. If, however, the Inspector had been right to say that it was too late to advance an appeal under ground (g), that was not the end of the matter. The Inspector had power to extend the time for compliance by a variation of the enforcement notice under section 176(1) of the 1990 Act. The Inspector had wrongly dismissed the case for Mr Koumis on this point without any analysis of the merits of the points raised.[8]Ground 4 also concerned the period of time for compliance with the enforcement notice. As noted above, Enfield conceded that 6 months would be appropriate. In paragraph 7 of the Decision Letter the Inspector referred to this, and said that she would vary the enforcement notice to accord with Enfield’s concession. However she failed to do so: the four variations which she specified did not include any change to the time for compliance. In ground 4 it was said that she erred in law by failing to give effect to Enfield’s concession.[9]Ground 5 concerned the first of the variations made by the Inspector. At the Inquiry, Mr Koumis had sought to raise another new ground of appeal. This ground was sought to be advanced under section 174(2)(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.[10]In this regard Mr Koumis asserted, among other things, that the height of the roof permitted by the enforcement notice should be measured from the highest point of the land. At paragraph 5 of the Decision Letter the Inspector explained that in her view it would be logical that the height of the building should be measured from the lowest level of the site “because that would achieve the lowest possible building.” In ground 5 Mr Koumis said that this approach was irrational, and was not supported by any adequate reasons.[11]Shortly before the hearing, however, Mr Turney lodged a supplementary skeleton argument “as a matter of urgency to update the court, and to invite the court to determine a preliminary issue in respect of the validity of the enforcement notice.” The supplementary skeleton argument explained that on Friday 4 May 2012 Enfield had served a “notice of variation” in respect of the enforcement notice. It was said on behalf of Mr Koumis that the effect of the notice of variation was to render the enforcement notice a nullity. A preliminary issue was sought on what I shall call “the nullity argument” – whether the variation notice had indeed had the effect of rendering the enforcement notice a nullity. The Secretary of State and Enfield both opposed such a preliminary issue. I directed that the matter be dealt with as part of the arguments concerning the appeal against the enforcement notice. It is convenient for the purposes of this judgment to deal with it at the outset.[12]Accordingly in this judgment I deal with matters as follows:a. A. Introduction 2b. B. The nullity argument 4c. C. Ground 1: Height permitted by the 2005 permission 11d. D. Ground 2: Impact of the enforcement notice 19e. E. Ground 3: 20 months needed to comply 22 F: Conclusion 23 Annex 1: the August 2005 report 24 Annex 2: the 2005 permission 27 Annex 3: opening statement for Mr Koumis 28 Annex 4: Mr Warden’s statement 31 Annex 5: Enfield’s written closing submission 33 Annex 6: closing statement for Mr Koumis 41

The nullity argument

[13]Section 173 of the 1990 Act deals with the contents and effect of an enforcement notice. Material for present purposes are subsections (3), (8) and (9): 173. – Contents and effect of notice … (3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease … (8) An enforcement notice shall specify the date on which it is to take effect and, subject to sections 175(4) and 289(4A), shall take effect on that date. (9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.[14]It will be seen from subsection (a) that the enforcement notice is required to specify the date on which it is to take effect. It will also be seen that, while the notice will generally take effect on the specified date, this is subject to sections 175(4) and 289(4A). Section 289(4A) confers certain powers on the court, but they are not material for present purposes. Section 175 makes supplementary provision concerning appeals. It provides: 175. – Appeals: supplementary provisions. … (4) Where an appeal is brought under section 174 the enforcement notice shall… be of no effect pending the final determination or the withdrawal of the appeal.[15]The enforcement notice issued by Enfield on 17 June 2008 stated: 6. TIME FOR COMPLIANCEThree (3) calendar months after this Notice takes effect 7.WHEN THIS NOTICE TAKES EFFECT This Notice takes effect on 22 July 2008, unless an appeal is made against it beforehand.[16]It is plain from paragraphs 6 and 7 of the enforcement notice that if there had been no appeal then the notice would have taken effect on 22 July 2008. In the present case, however, there was an appeal. By virtue of section 175(4), the notice would take effect once there had been a final determination of the appeal.[17]Under section 173A a local planning authority has power to withdraw an enforcement notice or, in certain respects, to vary the notice. So far as material, it provides: 173A. – Variation and withdrawal of enforcement notices.(1) The local planning authority may – (a) withdraw an enforcement notice issued by them; or (b) waive or relax any requirement of such a notice and, in particular, may extend any period specified in accordance with section 173(9).(2) The powers conferred by subsection (1) may be exercised whether or not the notice has taken effect. … (a) withdraw an enforcement notice issued by them; or (b) waive or relax any requirement of such a notice and, in particular, may extend any period specified in accordance with section 173(9).[18]Ms Lambert’s initial skeleton argument for Enfield stated that two variations to the enforcement notice were contemplated. First, paragraph 52 of the initial skeleton argument concerned ground 4, the complaint that the Inspector had not included in the Decision Letter a formal variation to give effect to Enfield’s concession that a period of 6 months should be given for compliance. The initial skeleton argument said that Enfield did not accept that there was any failure by the Inspector in this regard. It added that in any event Enfield: is currently in the process of putting the matter beyond doubt by itself formally amending the Notice it issued by virtue of its powers under section 173A of the 1990 Act to state the time for compliance as 6 months.[19]Second, at paragraphs 55 to 58 Ms Lambert’s initial skeleton argument dealt with ground 5, the Inspector’s variation of the notice so as to measure ridge height from the base of the building from its north eastern/ south eastern corner. The skeleton argument added at paragraph 59 that in any event, while Enfield did not accept that there was any failure by the Inspector with respect to ground 5, Enfield: is also varying this requirement of the Notice under its powers by section 173A.[20]What then happened was that a letter dated 4 May 2012 was sent by Enfield to those who had received copies of the enforcement notice. The letter referred to the site, and continued: Please find attached a Variation Notice, the contents of which are self-explanatory. Please note the following: 1) The Council does not accept that there is any merit in the High Court challenge (claim reference CO/4116/2011) but the variations are being made in order to put maters beyond doubt and avoid taking up the Court’s time; and 2) The Council does not accept that the enforcement notice needs amendment to state a six month period for compliance as that was dealt with effectively in the Planning Inspector’s decision letter of 8 April 2011 but the amendment is being made for the avoidance of any doubt.[21]The variation notice which accompanied this letter was also dated 4 May 2012. So far as material, it provided: The Council directs that the requirements of the Enforcement Notice are hereby relaxed by the following variations:(i) the TIME FOR COMPLIANCE in Part 6 of the notice is varied by the deletion of ‘Three (3) calendar month after this Notice takes effect’ and the substitution of the words “Six (6) calendar months after 4 May 2012”(ii) Requirements5.1 and5.2 in Part 5 of the enforcement notice are varied by deletion of the words “/south eastern” after the words “ground level as measured from the base of the building at its north eastern”.[22]On Monday 7 May 2012 Mr Turney advised Mr Honey and Ms Lambert that in his view the variation of the time for compliance with the enforcement notice had rendered the notice as a whole a nullity. The reasons why he had reached that view are conveniently set out in paragraphs 11 to 17 of his supplementary skeleton argument:11. Section 173(9) TCPA 1990 provides as follows: (9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.12. The period for compliance cannot start before the notice takes effect. In R (Lynes) v West Berkshire DC [2002] EWHC 1828 Admin, Harrison J considered enforcement notices which stated the time for compliance as “immediately this notice takes effect”. His lordship considered whether the notice could be taken to refer to a period of compliance prior to the notice taking effect and held: [30] ...I do not think that the statutory framework envisages a period for compliance starting before the notice takes effect... I notice that paragraph P173.22 of Volume 2 of the Planning Encyclopedia states:
"By virtue of subs. (9) the notice must specify a compliance period, which commences on the date the notice takes effect, for the carrying out of any required steps or the cessation of any specified activities." [31] In my view, that correctly states the position. 13. Harrison J concluded that the compliance period specified should start from the date which the notice takes effect: see [34]. 14. The compliance period incorporated by the notice of variation runs from 4 May 2012. It is plain beyond argument that this is a date before the notice takes effect, because the effect of the present appeal under s 289 TCPA 1990 is to suspend the effect of the enforcement notice. Accordingly, the enforcement notice as varied fails to specify a compliance period which commences on the date which the notice takes effect, and accordingly the enforcement notice fails to comply with s 173(9) TCPA 1990. 15. By way of practical illustration of the fact that the period given by the IP in the varied notice is invalid, it is instructive to consider the position should the appeal under s 289 succeed. The matter would then be remitted to the Secretary of State, the appeal still undetermined, but the notice may fall to be complied with before that appeal has been determined and the notice has taken effect. That position would be nonsensical. This confirms that the approach in Lynes is good law and of direct applicability to the present case. 16. The consequences of such a failure were considered in Lynes. Harrison J, relying on the leading authority of Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 concluded that the failure to specify a period for compliance in accordance with s 173(9) rendered the notice a nullity: [48] Having considered the submissions of both parties and the authorities to which I have been referred, I have reached the conclusion that an enforcement notice which, on the face of it and without having to refer to evidence elsewhere, fails to specify a period for compliance as required by section 173(9) is a nullity and it is therefore without legal effect. That being so, it cannot be the subject of amendment by the Secretary of State under section 176. The power of amendment under section 176 cannot relate to an enforcement notice that is a nullity. The test of whether an amendment to an enforcement notice can be made without injustice can only apply to a notice which is not a nullity. Furthermore, an enforcement notice that is a nullity cannot be made the subject of an appeal under section 174(2)(g). It is relevant to note that section 174(2)(g) is predicated on the basis that a period for compliance has been specified in the notice, whereas no such period has been specified in these enforcement notices. [49] I am very conscious of the need to avoid technicalities and artificial distinctions when dealing with enforcement notices, but the failure to comply with a basic statutory provision for a valid enforcement notice, such as specification of a period for compliance, cannot be said to be a technicality. An enforcement notice which, on its face, does not comply with such a requirement, is a nullity and therefore incapable of amendment. As it cannot be the subject of an appeal under section 174, the preclusive provisions of section 285 do not apply and the claimants are entitled to apply for judicial review for the declaration that they seek. 17. For those reasons, it is respectfully submitted that the effect of the notice of variation is to render the enforcement notice a nullity. If it has no legal effect, it cannot properly be the subject of an appeal under s 174 TCPA 1990 or subsequently s 285 TCPA 1990. Accordingly, the Appellant submits that the Court should declare the enforcement notice to be a nullity and formally dismiss the appeal under s 289 TCPA 1990. The Appellant will seek the costs of pursuing that appeal from the IP. [30] ...I do not think that the statutory framework envisages a period for compliance starting before the notice takes effect... I notice that paragraph P173.22 of Volume 2 of the Planning Encyclopedia states: "
By virtue of subs. (9) the notice must specify a compliance period, which commences on the date the notice takes effect, for the carrying out of any required steps or the cessation of any specified activities." [31] In my view, that correctly states the position. [48] Having considered the submissions of both parties and the authorities to which I have been referred, I have reached the conclusion that an enforcement notice which, on the face of it and without having to refer to evidence elsewhere, fails to specify a period for compliance as required by section 173(9) is a nullity and it is therefore without legal effect. That being so, it cannot be the subject of amendment by the Secretary of State under section 176. The power of amendment under section 176 cannot relate to an enforcement notice that is a nullity. The test of whether an amendment to an enforcement notice can be made without injustice can only apply to a notice which is not a nullity. Furthermore, an enforcement notice that is a nullity cannot be made the subject of an appeal under section 174(2)(g). It is relevant to note that section 174(2)(g) is predicated on the basis that a period for compliance has been specified in the notice, whereas no such period has been specified in these enforcement notices. [49] I am very conscious of the need to avoid technicalities and artificial distinctions when dealing with enforcement notices, but the failure to comply with a basic statutory provision for a valid enforcement notice, such as specification of a period for compliance, cannot be said to be a technicality. An enforcement notice which, on its face, does not comply with such a requirement, is a nullity and therefore incapable of amendment. As it cannot be the subject of an appeal under section 174, the preclusive provisions of section 285 do not apply and the claimants are entitled to apply for judicial review for the declaration that they seek.[23]The next relevant event was that on 8 May 2012 Enfield wrote again in relation to the site. Its letter stated as follows: The Council served a s. 173A Notice dated 4th May 2012 which sought to relax requirements 5.1, 5.2 and 6 of the Enforcement Notice CON/5578 issued on 17th June 2008. Unfortunately, the Council made an error in the drafting of the relaxed paragraph 6 and did not, in effect, relax the requirement. Therefore, the Council notifies the recipient that the s. 173A Notice dated 4th May 2012 is of no effect and attaches a corrected s. 173A Notice dated 8th May 2012. For the avoidance of doubt, it is the same in all respects apart from the wording of paragraph 6 which now reads: 6. TIME FOR COMPLIANCE Six (6) calendar months after this Notice takes effect Six (6) calendar months after this Notice takes effect[24]The accompanying notice was also dated 8 May 2012 and stated, so far as material: The Council directs that the requirements of the Enforcement Notice are hereby relaxed by the following variations:(i) the TIME FOR COMPLIANCE in Part 6 of the Enforcement Notice is varied by the deletion of “Three (3) calendar month” before the words “after this Notice takes effect” and the substitution of the words “Six (6) calendar months”(ii) Requirements5.1 and5.2 in Part 5 of the Enforcement Notice are varied by deletion of the words “/south eastern” after the words “ground level as measured from the base of the building at its north eastern”.[25]Mr Turney submits that, if he is right and the variation of 4 May 2012 rendered the enforcement notice a nullity, then it is self-evident that it cannot be saved by a later variation under the power conferred by section 173A. That power, he submits, relates only to enforcement notices, not nullities.[26]In my view the argument advanced by Mr Turney does not get to first base. For the purposes of analysing the argument, I am prepared to assume the correctness of the decision in Lynes. I am also prepared to assume that Mr Turney is right in his submission that, once the enforcement notice is varied so that it contains the wording in the variation notice of 4 May 2012, it falls foul of Lynes, as it fails to specify a compliance period which commences on the date when the enforcement notice takes effect. If that were so, however, then it seems to me that what Mr Turney submits would be the case for the enforcement notice when varied must apply to the variation notice itself. There was nothing wrong with the enforcement notice prior to the issue of the variation notice. The crucial element in Mr Turney’s argument is that on 4 May 2012 the Council did something which it had no power to do. In those circumstances, the necessary consequence would appear to me to be that it is the action which it had no power to do that is a nullity.[27]Mr Turney foresaw exactly this analysis, and sought to answer it in paragraph 22 of his supplementary skeleton argument in this way:a. The varied enforcement notice, whilst a nullity, is valid until quashed: see Smith v East Elloe DC [1956] AC 736 at 769-770 (“Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders”);b. The Appellant would be bound to comply with the enforcement notice as varied unless he challenged it, and would be subject to criminal sanction for non-compliance: see R v Wicks [1998] AC 92 at 124 (“The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it”). It is therefore clear that the notice as amended on 4 May is the notice which is the subject of these proceedings.[28]This suggested answer, however, in my view is inconsistent with the decision in Lynes itself. At paragraph 45 of his judgment in Lynes, Sir Michael Harrison recorded the submission advanced to him concerning the principle in R v Wicks. The House of Lords held in that case that there must be compliance with an enforcement notice which is “formally valid” in the sense that on its face it complies with the requirements of the Act and has not been quashed. The judge set out the submission in answer by Mr Fookes on behalf of the Local Planning Authority, and by Mr Lewsley in reply: Mr Fookes drew my attention to the Divisional Court case of Palacegate Properties Ltd v Camden London Borough Council [2000]4 PLR 59where the court considered the expression “formally valid” as mentioned in Wicks. Laws LJ stated at page 81 that the formality in question was simply a shorthand to collect the requirements that are imposed on the face of the statute for the issue of an enforcement notice. Mr Lewsley submitted that one of the requirements for the issue of a valid enforcement notice is that the compliance period must be specified.[29]In my view it is clear that in reaching the conclusion that the enforcement notice was a nullity, the judge was adopting the distinction identified by Mr Lewsley. The flaw in that case, as identified by the judge, was that a requirement for the issue of a valid enforcement notice had not been specified. By parity of reasoning in the present case a requirement for the issue of a valid variation notice was not specified. Just as R v Wicks (and with it the principle in Smith v East Elloe RDC) did not save the day in Lynes, neither would they save the day as regards the variation notice in the present case.[30]For those reasons, which are essentially similar to those advanced by Mr Honey and Ms Lambert, it seems to me that when taken on its own terms the nullity argument fails. I would add that, for my part, I can see attractions in an argument that, at least during the period when the enforcement notice has no effect pursuant to section 175(4), nothing done by way of variation notice has the effect of rendering an enforcement notice a nullity. It is unnecessary, however, to explore the merits of such an argument. It is equally unnecessary to explore an argument by Mr Honey and Ms Lambert that the variation of 4 May 2012 failed to comply with section 173A.

Ground 1: Height permitted by the 2005 permission

[31]The statement of common ground provided to the Inspector noted both an agreement and a dispute relevant to the 2005 permission. The agreement was set out in the fifth of seven agreed items identified in paragraph 2.4 of the statement of common ground: 5. Planning permission has been granted on the site in 2004 for a building containing seven flats and a further planning permission was granted in 2005 for a building containing nine flats. Neither of these planning permissions has been implemented and each has now lapsed. The appeal site does not benefit from any extant planning permissions.[32]The dispute was described in section 3 of the statement of common ground: 3.0 The height of the previous approval on site3.1 There is a dispute between the principal parties in respect of the ridge height of the development approved in the 2005 planning permission (TP/04/2595). The approved plan is missing from the local planning authority’s file. The appellant holds a drawing, which is marked with an “approval stamp”.3.2 This drawing identifies a gabled roof to the front block and steep pitched hipped roof to the rear block of that scheme with ridge heights of 10.5m above ground level, along with a staircase at first and second floor and a kitchen a second floor projecting to the rear of the front block. The local planning authority remain of the opinion that the scheme approved by them had shallow pitched hipped roofs to both blocks each with a maximum ridge height of 9.5m above ground level without the aforementioned rear projections.[33]It was also common ground that the height allowed under the 2005 permission was a material consideration for the Inspector. For Mr Koumis it was said that the maximum height permitted was that shown on the drawing that was produced on his behalf, bearing an “approved” stamp (“the appellant’s plan”), and that a previous grant of permission to build to a height of 10.5 metres (as shown on the appellant’s plan) was highly material as to whether it would be right to require a reduction in the height of what had been built, and whether retrospective planning permission should be conferred. Enfield acknowledged that if a height of 10.5 metres had been allowed by the 2005 permission then this would at least be a relevant factor for the Inspector on both matters.[34]It is now said on behalf of Mr Koumis that as a matter of law, on its true construction, the 2005 permission authorised a building of 10.5 metres in height. At the outset, it is in my view instructive to see how the matter was put to the Inspector, and what she said about it.[35]The starting point is the 2005 permission itself. Material parts of it are set out in Annex 2 to this judgment.[36]The recital to the 2005 permission noted that Mr Mike Bardy (the agent for Connoisseur Developments) on 4 January 2005 lodged an application illustrated by plans. The operative parts of the 2005 permission stated that permission to develop the site in accordance with the application was granted. The operative parts did not themselves specify any particular plan. However, immediately under the signature and date, the 2005 permission gave a reference number for a drawing: “PR/16-18/LAYOUT/A”.[37]Condition 11 required obscured glass for glazing at locations in the rear and side elevations indicated on a drawing which was described with a very similar reference, “PR/1-18/Layout A”. There seems no reason to doubt that this reference, and the reference immediately under the signature and date, were intended to be identical. I shall refer to the reference in question as “the Layout A” reference.[38]In addition, condition 12 abrogated what would otherwise have been an ability to install additional external windows or doors. In order to do this, it provided that the approval in writing of the Local Planning Authority was required for “external windows or doors other than those indicated on the approved drawings …”.[39]The question which both sides asked the Inspector to answer was, what was the relevant drawing? On the one hand, Mr Koumis relied on the appellant’s plan. The Decision Letter at paragraphs 12 and 13 set out the Inspector’s findings about that plan and Mr Koumis’s evidence in relation to it:12. The Appellant has a plan dated May 2005 which has been stamped ‘permission granted subject to conditions 31 Aug 2005’ which shows a development with a ridge height of 10.5m. The ‘A’ revision is dated 20/5/2005 and described ‘As discussed with Local Authority Planning Officer’. Ms Allenden, the case officer, who unfortunately did not attend the Inquiry, says in her statutory declaration that she did not see this drawing until May 2009 during the course of these appeals and Mr Higham, the Planning Decisions Manager, only recalls seeing it in May 2007 during the enforcement investigation.13. Mr Koumis said that this was his first venture into development and he left everything in the hands of his then agent. He said that he had never had an original of the drawing; he found the stamped plan in his file; he went to the Committee meeting but did not read the report; and he did not recall the height of the scheme. Mr Koumis also found, about six-seven weeks ago, a letter from his agent to the Council dated 10 May 2005 in which the agent alleges that the building cannot be constructed with a height of 9.5m and that 10.5m would be more viable. An adjusted drawing is promised and given the description on the stamped plan it could be the drawing promised in the letter. The letter is not on the Council’s file. Beyond producing these documents Mr Koumis was unable to help with the provenance of the stamped drawing. It is very unfortunate that Mr Bardy, who was acting for Mr Koumis at the time, was unobtainable and so did not attend the Inquiry.[40]Enfield’s case, as described by Ms Lambert in her written opening for the Inquiry, was that the drawing referred to in the 2005 permission was missing from the planning file. As to what was on the file, and what indeed was the approved plan with the Layout A reference, the written opening stated: …Three drawings do remain on the planning file. Each of them has been marked by hand superseded by the then case officer. The Council has obtained a further plan relating to this application. Firstly it was provided by a neighbouring resident and later, Parkway Developments Limited (developer of Ashbourne Lodge) provided the drawing. It is the Council’s case that this was the plan that became the approved plan for application TP/04/2595 (the Council’s Plan).[41]Enfield’s case in this regard was put forward in a written proof and oral evidence by Mr David Warden, a principal planning officer with the borough. It had three central elements. The first was that the appellant’s plan was inconsistent with the report prepared by officers for consideration at the meeting of Enfield’s Planning Committee on 31 August 2005, the meeting at which permission was granted. Relevant parts of that report appear at Annex 1 to this judgment. Among other things, the report said expressly that the building proposed would be three storeys high with an overall height of 9.5 metres. Second, Mr Andrew Bennett [of Parkway Developments Limited] had been responsible for a neighbouring development, and had taken an active interest in the site. He said that he had been given notice that the application would be considered on 31 August 2005, and had accordingly attended at Enfield’s planning department beforehand. He took a copy of a drawing with the Layout A reference, which he understood to be the plan for which approval was sought. It showed a maximum height of 9.5 metres. Third, Mr Warden had identified numerous points of detail about the appellant’s plan which he relied on as suggesting that it was not the plan approved by Enfield on 31 August 2005.[42]Extracts from Mr Warden’s proof of evidence are set out in Annex 4 to this judgment. Both Mr Warden and Mr Bennett gave oral evidence to the Inspector and were cross-examined. Written closing submissions by Ms Lambert dated 23 March 2012 reviewed their oral evidence, the oral evidence of another planning officer, Mr Higham, and other evidence submitted to the Inquiry. Extracts appear at Annex 5 to the present judgment. At paragraph 14 Ms Lambert said that it would be necessary for a finding as to: … which plan is the one that is most likely to have gone out to consultation and the most likely to have gone to Planning Committee.[43]Extracts from Mr Turney’s written closing statement on behalf of Mr Koumis appear at Annex 6 to the present judgment. It will be seen that Mr Turney noted that the appellant’s plan was the only one which carried Enfield’s standard stamp stating that the scheme had been approved, and that while Mr Warden suggested that there may have been manipulation it was not said that Mr Koumis was dishonest in asserting that this was the correct plan. The written closing statement identified answers to Mr Warden’s detailed critique and other assertions, noted that Mrs Allenden had not given live evidence, and criticised the evidence of Mr Bennett. All this led up to a conclusion in which on behalf of Mr Koumis it was submitted “that on the balance of probabilities the appellant’s plan is the approved plan.”[44]It was in these circumstances that the Inspector came to consider the matter in her Decision Letter. At paragraph 9 she recorded that a significant amount of Inquiry time was taken up with whether the Council’s plan or the appellant’s plan was the correct one. She added: I will not go into every detail raised by the parties but will set out below what I consider to be the most salient points.[45]The Inspector’s findings on the “most salient points” concerning Enfield’s evidence were set out in paragraphs 10 and 11 of the Decision Letter:10. The grant of permission refers to Drawing No.PR/16-18/LAYOUT/A. There are a number of drawings on the Council’s files: one dated October 2004 has a ridge height of 11.2m but this drawing is marked as superseded; one dated March 2005, where the ‘A’ has been changed in handwriting to ‘B’ but with no accompanying description for ‘B’, has a ridge height of 10.5m and this drawing is also marked as superseded; one dated June 2005 where the ‘B’ revision has been described and the drawing superseded; and one dated March 2005 with a ridge height of 9.5m which the Council says is the plan of the scheme that was approved. The Council did not have a copy of this plan on its file but obtained an un-numbered copy from a neighbour and the numbered plan from Mr Bennett.11. Mr Bennett is the developer of an adjacent site and he therefore had a keen interest in what was proposed for the appeal site. He objected to the scheme. He received a letter from the Council dated 17 August 2005 advising him that the Planning Committee would be considering the Appellant’s scheme on 31 August 2005. Mr Bennett went to the Council Offices, asked for the file, took a copy of the drawing and obtained a copy of the Committee Report. The report refers to the scheme having an overall height of 9.5m and it being 0.5m higher than the previous two storey 9m high scheme. I appreciate that there may be some unanswered questions including which file Mr Bennett saw and whether the plan Mr Bennett copied was the plan that the Committee would be considering but Mr Bennett thought it was unlikely that he did not have the correct plan.[46]Those paragraphs were followed by paragraphs 12 and 13, quoted above, dealing with the appellant’s plan and the evidence of Mr Koumis. Having thus set out her findings on what she regarded as the most salient points of each side’s case, the Inspector said in paragraph 14: 14. Given the evidence I have set out above, and taking all the other matters that were raised into account, on the balance of probability and with regard to, among other things, the Committee report and Mr Bennett’s evidence, I consider that the scheme approved by the Council in 2005 had a ridge height of 9.5m[47]This account of how the matter was dealt with at the Inquiry, and what was said about it in the Decision Letter, in my view shows that the Inspector did exactly what the parties asked of her. She was asked to make a finding of fact on the balance of probabilities, and she did so. I detect no hint of any suggestion on behalf of Mr Koumis that there was any principle of law which required her to reach some different conclusion. Mr Honey and Ms Lambert submit that it follows that Mr Turney is not entitled to seek to advance such a submission in this court. I consider that they are right, but I do not propose to let the matter rest there. It would be unfortunate if Mr Koumis were deprived of a valid legal argument merely because the point had not been taken in front of the Inspector.[48]The argument advanced by Mr Turney at the hearing before me proceeded in stages. The first stage was that the 2005 permission expressly referred to an approved plan. This is true. As noted earlier, condition 12 referred to “the approved drawings”. It did not say, however, that any drawing had been stamped as “approved”.[49]The next stage was that Enfield had called no evidence to suggest that the approval stamp on the appellant’s plan was not genuine, and indeed Enfield’s witnesses accepted that the stamp appeared to be Enfield’s. This does not in my view do full justice to what was said on behalf of Enfield. There was a concern that there may have been manipulation. Enfield did not assert that Mr Koumis had been dishonest in this regard. Its case was that there were other circumstances which were incompatible with the appellant’s plan being the plan approved by Enfield in conjunction with the 2005 permission.[50]The third stage of the argument was that Enfield had not produced any other plan which was stamped or otherwise marked as having been approved by Enfield; instead it relied upon a plan which had been obtained by a third party (Mr Bennett) from Enfield prior to the grant of planning permission on 31 August 2005. This, too, is true. It must be seen in context: prior to receipt of the copied plan taken by Mr Bennett, Enfield’s planning file had on it only three relevant plans, each of them marked “superseded”. A plan copied by Mr Bennett in the circumstances he described could not be expected to have any approval stamp on it: it had been copied at a stage when, according to Mr Bennett, it was the plan which was to be put forward to the Council for approval.[51]The fourth stage in the argument was put in this way: d. As a matter of proper interpretation of the 2005 permission, the Appellant (and therefore the Inspector) was entitled to rely on a plan which had been marked as approved by [Enfield]. Unless [Enfield] disputed the authenticity or provenance of the stamps on the plans, those plans plainly formed part of the 2005 permission;[52]I cannot accept this argument. The question is simply one of interpreting the 2005 permission. No contention by way of estoppel is advanced. I adopt in this regard the following principles for construction put forward by Mr Turney.[53]First, as observed by Keene LJ in Barnett v Secretary of State for Communities and Local Government [2010] 1 P& CR 8 at [28], the interpretation of a planning permission is a matter of law for the court.[54]Second, Mr Turney took me to what was said by Keene J (as he then was) in R v Ashford BC ex p Shepway DC [1999] PLCR 12 at 19–20:(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions...(2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application…(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as ‘… in accordance with the plans and application …’ or ‘… on the terms of the application …,’ and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted...(4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity…(5) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue…[55]Mr Turney noted that in Barnett (above) it was established that the second principle in Ashford did not prohibit reference to the application plans in the case of a grant of full planning permission, for Keene LJ approved (at [21]) the following passage from Sullivan J’s judgment at first instance in the Barnett case: 24. If it is plain on the face of the permission that it is a full permission for the construction, erection or alteration of the building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings which will describe the building works which have been permitted precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were as much a part of the description of what has been permitted as the permission notice itself. It is not a question of resolving an ‘ambiguity’. On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice. Absent any such statement, the reasonable inference, against the statutory background provided by section 62 of the Act and the 1988 Regulations, is that a grant of full planning permission approves the application drawings.[56]As Mr Turney noted, Sullivan J reinforced the point at the end of paragraph 29: Any member of the public reading such a decision notice will realise that it is incomplete, indeed quite useless, without the approved plans and drawings which are a, if not the vital part of the permission.[57]At this point it appears to me to be appropriate to add the observations of Sullivan J at paragraph 30 of the same judgment: 30. If the permission does not expressly refer to the application and/or list the application plans and drawings, there may well be ambiguity as to which plans and drawings have been approved. If so, it will be permissible to look at extrinsic material, including in particular the application for planning permission in order to resolve that ambiguity. In the absence of any evidence to the contrary, the proper inference, in the light of the statutory framework contained in the Act and in the 1988 Regulations will be that the plans and drawings submitted with the application are those that have been approved and that they are an integral part of the permission that has been granted…[58]Sullivan J, in the passages that I have cited, was addressing the position where the plans and drawings submitted with the application had not been superseded. In a case where the application plans or drawings are superseded, the approach of the court will not differ in principle. The court’s task, if there is ambiguity as to which plans and drawings have been approved, is a task for which it will be permissible to look at extrinsic material. The 2005 permission was not couched in terms which stated that only such plans or drawings as had been stamped “approved” were those in accordance with which development could take place. Mr Turney pointed out that there was evidence from Enfield that its practice was to stamp plans or drawings which had been approved. That practice, however, does not prevent the court from referring to unapproved plans as part of the extrinsic evidence which is relevant to decide what plan had in fact been approved by the Council on the occasion in question. Indeed, as it seems to me, even if the permission had been couched in those terms it is conceivable that the court might nonetheless in an appropriate case have regard to evidence going beyond plans and drawings which had been stamped “approved”.[59]Mr Turney made a further point about the lack of contradictory plans on the statutory planning register. I agree that the statutory planning register may be an important consideration. A grant of planning permission runs with the land, and it is highly desirable that there should be certainty as to what has been approved when permission is granted. Mr Turney rightly notes that Enfield can point to no document on the planning register which contradicted the appellant’s plan. He submitted that to uphold Enfield’s case in those circumstances would be contrary to the need for certainty as to the terms and extent of a grant of planning permission. I would have some sympathy with this submission if the appellant’s plan had been on the statutory register. However it was not on that register. Moreover there is scant information about it. The evidence adduced by Enfield raises many questions as to how it could possibly be the drawing which Enfield had approved on 31 August 2005. I do not accept that it was impermissible in law to go beyond the appellant’s plan.[60]By way of fallback Mr Turney submitted that the Inspector had erred in law in three respects. The first of these was a failure to have regard to the absence of any marks of approval on the plan relied on by Enfield and the fact that it was not part of the planning register. In the present case, however, neither side was able to produce a plan which was part of the planning register. As to the lack of marks of approval on the plan relied on by Enfield, for the reasons given earlier no such marks of approval could be expected to be there. The second complaint was that the Inspector had not been entitled to look to extrinsic evidence as to the intentions of Enfield in granting permission. This seems to me to miss the point. I acknowledge that the task of the court when deciding on the legal meaning of a grant of planning permission is to construe the grant itself. As explained in the citations above, however, where the grant is ambiguous then extrinsic evidence may be relied upon in order to ascertain as a matter of fact what plan or drawing it was that was approved by the Local Planning Authority. The third complaint was that the Inspector gave no reasons for finding that the stamped plan was not the approved plan. Applying the principles described by the House of Lords in South Buckinghamshire District Council v Porter (2) [2004] 1 WLR 1953, I do not accept that there is any relevant legal failure by the Inspector in this regard. She was fully entitled to confine the Decision Letter to those points which she regarded as the most salient. On a fair reading of the Decision Letter it seems to me that paragraphs 11 and 12 identify significant difficulties that lie in the path of any suggestion that Enfield on 31 August 2005 approved a plan showing a ridge height of 10.5 metres. Paragraph 13 identifies the limited nature of what Mr Koumis was able to say about the appellant’s plan. Paragraph 14 draws particular attention to the two obstacles which were obviously the most serious and difficult for Mr Koumis to surmount: the Committee report and the evidence of Mr Bennett. In these circumstances I consider that the reasoning of the Inspector is tolerably clear and that there was no need for the Decision Letter to go through Mr Turney’s closing submissions in detail on this aspect.[61]In written submissions lodged at my request Mr Turney made reference to R (Knowles-Fitton) v Craven DC [2011] EWHC 212 (Admin). There an officer’s report recommended approval but stated that certain conditions would be imposed on the grant. When written notice was given of the grant of planning permission, no condition was imposed in one of the respects that had been identified in the officer’s report. The court held that the condition had not been incorporated, for it did not feature in the written notice. Mr Turney also observed that in Stevenage Borough Council v Secretary of State for Communities and Local Government [2010] EWHC 1289 (Admin) the court rejected a contention that as a matter of principle, if plans materially add to the development described in the notice [granting planning permission], such additional elements must be excluded from the planning permission. None of these considerations, however, arise in the present case. Mr Turney submitted that Enfield’s procedure had the consequence that “permission” was found in a combination of the written notice and the stamped approved plan. For the reasons given earlier, however, I conclude that that is not the correct construction of the 2005 permission.[62]Written answering submissions from Mr Honey and Ms Lambert advanced additional reasons for not accepting Mr Turney’s propositions. I do not need to address these additional reasons, and accordingly I do not recite here the arguments advanced by Mr Turney in his written reply submissions.

Ground 2: Impact of the enforcement notice

[63]It was submitted by Mr Turney that in deciding whether to grant planning permission for the scheme as built, the Inspector was required to consider the extent to which and the manner in which that scheme differed from the scheme which could be created if the enforcement notice was upheld. Mr Turney’s submission was that there were particular respects in which the scheme created by the enforcement notice gave rise to uncertainties. They were as follows:a. height of the eaves of the building would remain unchanged with only the ridge height altered;b. there would be no control over the form of the roof;c. there would be no control over the materials used to form the roof;d. the building would not be subject to any other planning conditions.[64]The submission on ground 2 was that the Decision Letter did not grapple with this point. It was “a principle important controversial issue between the parties”. That submission, however, needs to be seen in context. It is right that the point in question (albeit expressed slightly differently) was canvassed in Mr Turney’s written opening submissions: see Annex 3 to this judgment. Those submissions recognised, however, that the judgment to be made by the Inspector concerned the planning merits and demerits of what had been built, and the planning advantages which will be achieved if the enforcement notice is complied with. All this was the subject of extensive consideration in the Decision Letter: The appeal under ground (a), the deemed planning application and the s. 78 appeal15. I consider that the main issues are first, the effect of the development on the character and appearance of the local area and second, the effect of the development on neighbours’ living conditions with particular regard to overlooking and whether it is overbearing. First Issue: Character and appearance16. …I consider that the setting of the appeal site is an urban one as defined in the London Plan.17. …Despite the variety of building shapes and heights in the western end of Hazelwood Lane the height, mass and volume of the front part of the appeal building, particularly with regard to the height and shape of the roof, is out of scale and over-dominant in the street-scene. When viewed from the Grove and the east of Hazelwood Lane the mass of the front part of the appeal building, again particularly the height and shape of the roof, is even more out of scale and over-prominent in the context of the predominantly two storey terraced housing in those streets.18. The rear part of the appeal building comprises four storeys of accommodation, the fourth being located within a mansard roof….I am not aware of any other mansard roofs in the area and because of its shape, mass, height and materials it is incongruous in this location.19. …20. Although the scheme required by the notice would have a slightly lower density and would not provide a mix of housing, it would provide nine flats and the mass, shape and height of the roof would be significantly reduced resulting in a less prominent and more appropriate building for the area.21. I therefore conclude that because of its mass, height and design the development as built has a harmful effect on the character and appearance of the local area and that it is in conflict with the Development Plan policies and national planning guidance that I have been referred to. Second Issue: Neighbours’ living conditions22. There are clear views down from the habitable room windows on the third floor (in the mansard roof) into flats in Ashbourne Lodge, across into the back gardens of properties on Park Avenue, and from Flat 11 there are oblique views on the back gardens of Nos. 20 and 22 Hazelwood Lane. … the three third floor flats significantly increase the amount of overlooking and to this extent I consider that they are harmful to neighbours’ living conditions with regard to overlooking.23. In views back towards the appeal building from these private spaces in Park Avenue and Ashbourne Lodge the mass of the mansard roof is significant and its dominant shape and height have a harmful effect on the outlook from those properties.24. No. 8 Hazelwood Court has the benefit of a small patio garden. This garden is now totally dominated by the height and virtually blank brick wall of the external staircase. …25. I accept that there would be some overlooking and that a limited sense of enclosure would remain for neighbours and particularly for the occupiers of No. 8 Hazelwood Court as a result of the enforcement notice scheme. But in an urban area such as this a limited amount of overlooking and sense of enclosure is not unusual and any harm resulting from the enforcement notice scheme would not be so significantly harmful as that which currently exists.26. …27. … I conclude that the appeal building as built does not comply with this policy and that it has a harmful effect on neighbours’ living conditions with particular regard to overlooking and that it is overbearing. Conclusions28. For the reasons given above and having regard to all matters raised, I conclude that neither appeal should succeed. I shall uphold the enforcement notice with a correction and variations, refuse to grant planning permission on the deemed application, and dismiss the s. 78 appeal. The appeal under ground (a), the deemed planning application and the s. 78 appeal First Issue: Character and appearance Second Issue: Neighbours’ living conditions

Conclusions

[65]What the Inspector makes quite clear here is that as to character and appearance the mass, shape and height of the roof are unacceptable and that the enforcement notice would, if complied with, lead to significant reductions, resulting in a less prominent and a more appropriate building for the area. As to neighbours’ living conditions, the enforcement notice scheme would result in some overlooking and adverse effects on neighbours, particularly those at No. 8 Hazelwood Court. That however, would not be “so significantly harmful as that which currently exists.” These are conclusions which are founded upon the major unacceptable features of the building. In my view the Inspector was fully entitled to take a broad brush approach to these general features. The planning advantages that the Inspector identified would be lost if planning permission were given for the development as built. In that context the points of detail relied upon by Mr Turney do not in my view constitute a principal important controversial issue between the parties, and there was no need for the Inspector to recite that she had taken account of what had been said on behalf of Mr Koumis in this regard.

Ground 3: 20 months needed to comply

[66]The first complaint under this ground is that the Inspector ought to have allowed Mr Koumis to advance this as a formal ground of appeal falling within section 174(2)(g). It was submitted by Mr Turney that there were no regulations which prevented Mr Koumis from relying upon ground (g) at any time. In any event, it was submitted that the evidence advanced by Mr Koumis that 20 months was needed ought to have been the subject of examination by the Inspector when deciding whether or not to vary the notice.[67]It seems to me that the Inspector did not need to rely on regulations in order to conclude that it was too late to advance a ground (g) appeal. In any event there was no need to advance such an appeal when other grounds were before the Inspector and thus the Inspector would have power to vary the time for compliance even in the absence of a ground (g) appeal. More generally, on a fair reading of the Decision Letter the Inspector was saying that she did not consider that justice to Mr Koumis required her to do more than was conceded by Enfield. Paragraph 7 of the Decision Letter stated: 7. The notice sets out a compliance period of three months. The Council conceded at the Inquiry that six months would be more reasonable. The Appellant sought a period of 20 months. The Appellant first raised the ground (g) appeal in his statement of case in January 2011 where a period of 12 months was sought. This period was extended to 20 months in Mr Koumis’ proof. There was no ground (g) appeal in the original appeal and the matter was not raised in the court proceedings; I consider that it is too late for the Appellant to raise a ground (g) appeal in the context of this Inquiry. I will vary the notice to accord with the Council’s concession and I also draw the Parties’ attention to the Council’s powers in s. 173A of the Act to extend any period specified in the notice whether or not the notice has taken effect should there be any need to do so.[68]The key point being made here is, to my mind, the point to which the Inspector drew attention in the last sentence. Enfield had the power to extend any period specified in the notice “should there be any need to do so.” What the Inspector was saying was that she did not identify from the evidence anything which required to be dealt with otherwise than by exercise of the Council’s powers in section 173A. If that is a conclusion open to the Inspector then there was no need for the Inspector to do more than accept Enfield’s concession, and there would be no point in a ground (g) appeal which would serve no useful purpose.[69]Mr Turney submitted that the Inspector could not be entitled to take such an approach, for it would render nugatory the ability to appeal under paragraph (g). I do not agree. It seems to me that in principle there may well be cases where an Inspector is entitled to say that the preferable course in the circumstances of the case is to deal with the time needed for compliance by means of an application to the Local Planning Authority for a variation, an application which can be considered on the basis of the particular facts as they apply at the time of the application.

F: Conclusion

[70]For these reasons I conclude that the nullity argument fails, and that each of grounds 1, 2 and 3 also fail. It is accepted by Mr Turney that it must follow that grounds 4 and 5 have been overtaken by the variation notice of 8 May 2012, and accordingly are no longer live. The result is that the application to quash the refusal of retrospective planning permission is unsuccessful, and the appeal from the enforcement notice is dismissed.

Annex 1: the August 2005 report

[71]The August 2005 report stated, among other things: Application Number: TP/04/2595 Ward: Palmers GreenDate of Registration: 4th January 2005 Location: 16-18, HAZELWOOD LANE, LONDON, N13 5EX Proposal: Redevelopment of site to provide a 3-storey block of 9 No. 2-bed self contained flats with roof terrace at first and second floor level, undercroft parking and vehicular access from Hazelwood Lane. Applicant Name & Address: Conosseur Developments1, Lodge DriveLondonN13 5LA Agent Name & Address: Mike Bardy, M&D Projects808, Green LanesWinchmore HillN21 2SA Recommendation: That planning permission be GRANTED subject to the following conditions: … 11. C24 Obscured Glazing 12. C25 No additional Fenestration … Site and Surroundings: The site currently contains a locally listed building that is used as a banqueting suite, but is in the process of being demolished. The site is located on the northern side of Hazelwood Lane, close to the junction with Green Lanes and Palmers Green Town Centre. The area is residential along Hazelwood Lane, but retail / commercial on Green Lanes. Amplification of Proposal: Permission is sought for the demolition of the existing building on the site, and the replacement with a 3-storey block, to provide a total of 9 x 2 bed self-contained flats. A roof terrace is proposed at first and second floor level, with a soft landscaped area to the rear. Car parking is provided for 10 spaces at ground floor level, together with a cycle shed. Relevant Planning History: TP/02/2276. Planning permission was granted on 24/3/04 for the redevelopment to provide 2 x 2-storey blocks, providing a total of 7 x 2 bed flats, with parking at basement level. TP/04/1149. Planning permission was refused on 9/8/04 for the erection of a part single, part two, part three storey block to provide 8 x 2 bed self contained flats with 11 car parking spaces. Consultations: Public Consultation letters have been sent to 39 neighbouring properties. 5 letters of objection were received raising the following points: - loss of light, outlook and privacy,- impact on future occupants of the new flats on the adjacent site,- the building should be 2-storey like the surrounding buildings,- this new scheme has not overcome the previous reasons for refusal. Green Lanes Business Association support the application as it will improve the area and attract new consumers to support the local shops. … Analysis: Principle The principle of residential development has already been established through the grant of planning permission under ref TP/02/2276 which approved seven flats. The acceptability of additional flats is subject therefore to issues of design, relationship with neighbouring residential properties and the provision of adequate access and parking. Loss of Existing Building The existing building is locally listed. However, it is now of little architectural or historic merit, and it is understood that the chimney breast is the only original remaining feature, leading to it being rejected from being statutory listed in 2003 as too many alterations have taken place. In addition, when assessing the earlier approved scheme, it was not considered that this could constitute a reason for refusal. Consequently, no objection is now raised. Impact on Appearance of Surrounding Area The internal layout of the proposed flats is generally considered acceptable including when having regard to Supplementary Planning Guidance. Density is calculated at 310 hrph which is above the upper limit of 200 hrph and the density figure of 295 hrph on the earlier approved scheme. PPG3 does advocate greater flexibility in the application of density standards to maximise development and Policy (II) H7 recognises that densities of up to 240 hrph may prove acceptable in town centre locations and those benefiting from a range of public transport options. This is not a town centre location and although bus services along Green Lanes and Hazelwood Lane are reasonable, there is no range of public transport options available. Notwithstanding this, the question of whether the proposed scheme represents an overdevelopment however must involve more than a numerical assessment and must take into account the relationship of the development to its surroundings and the street scene as well as the impact on neighbouring residential properties to establish acceptability and the relationship of this latest scheme to that previously considered acceptable. The current scheme involves an increase from two storey to three storey although the maximum height of the development would only increase by 0.5 metres. Given the height of existing buildings fronting Green Lanes which are 3-storey and notwithstanding the prevailing two storey form of residential areas to the north and east, the proposed three storey development would not be unduly intrusive or dominants when viewed within the context of the existing street scene of Hazelwood Lane. Impact on Neighbouring Properties The building proposed would be 3-stories high with an overall height of 9.5m. The approved scheme was 2-stories high at 9m. To address the Councils previous concerns, the boundary of the site has altered and now incorporates 18 metres of the rear garden of 9 Park Avenue, which lies directly behind the proposed block. However, the rear elevation of the building is only 6 metres from the rear elevation with the rear gardens of Nos 7 & 11 Park Avenue and there are a number of windows to habitable rooms. Although below our normal standard and in respect of the latest scheme, a distance of 12.5 metres would normally be sought. Due to the previous decision, this increase in height of 0.5m and an associated increase in bulk could give rise to concerns regarding loss of light and outlook as regards the relationship with the properties on Park Avenue. Taking into account the previous decision however, the differences are not sufficient to warrant refusal. … Conclusion: Taking into account the decision to grant planning permission for the seven flat scheme, this latest proposal for 9 units involves slight differences but would not create sufficient grounds to warrant refusal of the application. As a result, it is recommended that conditional planning permission be granted for the following reasons: 1. The proposed development due to its design, size, siting and scale, would not adversely affect the character or appearance of the street scene or the surrounding area having regard to Policies (I)GD1, (I)GD2, (II)GD3 and (II)H7 of the Unitary Development Plan. 2. The proposed development would not have an adverse impact on the amenities of neighbouring and nearby residential properties having regard to Policies (I)GD1, (II)GD3 and (II)H8 of the Unitary Development Plan. 3. The proposed development due to the level of parking provision and the access would not give rise to conditions prejudicial to the free flow and safety of traffic using the adjoining highways having regard to Policies (II)GD6, (II)GD7 and (II)T19 of the Unitary Development Plan. Application Number: TP/04/2595 Ward: Palmers GreenDate of Registration: 4th January 2005 Location: 16-18, HAZELWOOD LANE, LONDON, N13 5EX Applicant Name & Address: Conosseur Developments1, Lodge DriveLondonN13 5LA Agent Name & Address: Mike Bardy, M&D Projects808, Green LanesWinchmore HillN21 2SA Recommendation: That planning permission be GRANTED subject to the following conditions: Site and Surroundings: Amplification of Proposal: Relevant Planning History: Consultations: Public Analysis: Principle Loss of Existing Building Impact on Appearance of Surrounding Area Impact on Neighbouring Properties Conclusion:

Annex 2: the 2005 permission

[72]The 2005 permission stated, among other things: Mike Bardy,M&D Projects808, Green LanesWinchmore HillN21 2SA Whereas in accordance with the provisions of the Town and Country Planning Act, 1990 and the Orders made thereunder you have made application on 4th January 2005 and illustrated by plans for the permission of the Local Planning Authority to develop land situated at:- LOCATION: 16-18 HAZELWOOD LANE, LONDON, N13 5EXPROPOSAL: Redevelopment of site to provide a 3-storey block of 9 No. 2-bed self contained flats with roof terrace at first and second floor level, undercroft parking and vehicular access from Hazelwood Lane. Now therefore THE COUNCIL OF THE LONDON BOROUGH OF ENFIELD, the Local Planning Authority, HEREBY GIVE YOU NOTICE pursuant to the said Act and the Orders made thereunder that permission to develop the said land in accordance with the said application is HEREBY GRANTED, subject to the following CONDITION(S); - …11. The glazing to be installed in the rear elevation facing Park Avenue (at first and second floor level) and in the side elevation facing no. 20 Hazelwood Lane of the development indicated on drawing No. PR/1-18/Layout A shall be in obscured glass. The glazing shall not be altered without the approval in writing of the Local Planning Authority. Reason: To safeguard the privacy of the occupiers of adjoining properties.12. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995, or any amending Order, no external windows or doors other than those indicated on the approved drawings shall be installed in the development hereby approved without the approval in writing of the Local Planning Authority. Reason: To safeguard the privacy of the occupiers of adjoining properties. … Signed ____________________ Dated: 31st August 2005 Drawing Nos.: PR/16-18/LAYOUT/A Mike Bardy,M&D Projects808, Green LanesWinchmore HillN21 2SA Signed ____________________ Dated: 31st August 2005 Drawing Nos.: PR/16-18/LAYOUT/A

Annex 3: opening statement for Mr Koumis

[10]The written opening statement dated 22 March 2011 on behalf of the appellant included the following: 1. The principal issue for the Inquiry is whether the flats as built are acceptable in terms of height, massing and design, overlooking and overbearing impacts on neighbouring properties. The Appellant’s evidence – given by Tony Allen – will show that the development is acceptable in these terms and that evidence will be heard in detail today. … 3. Moreover, whilst the Appellant’s evidence will show that the development is acceptable in its own right – and therefore that there is a compelling case for the grant of planning permission on the s 78 appeal – even if that evidence is not accepted it must be asked whether any harm that is said to arise from the development as built would be materially reduced if the enforcement notice was to be upheld. The following critical points indicate that, if anything, the harm arising from the enforcement notice “scheme” would be greater than the retention of the development as built: a) The enforcement notice scheme would still result in a block of flats of a similar scale, height and massing to the appeal scheme; b) the enforcement notice scheme would have no control over the appearance of the roof of either the front or rear elements of the building. There would be nothing to ensure that the materials or design would be appropriate in context; c) the front section of the building would necessarily be of an inappropriate design by the creation of a shallow-pitched roof; d) the enforcement notice scheme would result in the loss of at least two 2-bedroom flats and the conversion of a 3-bedroom flat to a 2-bedroom flat. It is possible that further accommodation would be lost because the 9.5m height limitation, with a pitched roof in compliance with Building Regulations, may mean that three storeys of residential accommodation could not be accommodated. Further, there will be a loss of accommodation during the extensive building works; e) There would be no significant change in the impact of the development in terms of overlooking, loss of privacy and other impacts on neighbouring properties. 4. In short the enforcement notice “scheme” is one with no logic to it at all: sacrificing acceptable design for the unknown, creating an unconditioned development and losing at least two homes without any discernible benefit in planning terms. For all those reasons, the s 78/ground (a) appeals should succeed. Variations to the notice 5. If the ground (a) appeal does not succeed, the Appellant submits that the notice should be varied. The Appellant has sought to raise these issues in its Statement of Case under grounds (f) and (g); the LPA and PINS have resisted “new grounds” of appeal being adduced. However, that approach is wrong in law for the following reasons: a) There is no restriction on the Inspector entertaining new grounds of appeal at any stage in the process. The only issue is whether any party is prejudiced by their introduction. The LPA is clearly not prejudiced by their introduction as it has been aware of the grounds raised for many months; b) It is simply wrong for the LPA to rely on regulation 21 of the 2002 Rules as providing a basis for excluding those grounds of appeal. Regulation 21 begins “Where a decision of an inspector on an appeal for which an inquiry has been held is remitted by any court to the Secretary of State for rehearing and redetermination…”. This is not such a case: the last Inspector did not hold an Inquiry. The matter has therefore been remitted without any restriction on the matters which can be canvassed as there is no equivalent rule to Regulation 21 in the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002/2683; c) Most importantly, the Inspector has a power to vary the terms of the enforcement notice if she is satisfied that the variation will not cause injustice to the Appellant or the LPA: s 176(1)(b). As paragraph P174.11 of the Planning Encyclopaedia notes, grounds (f) and (g) “do not go to the validity of the notice, and excessive or unreasonable requirements may instead be varied by the Secretary of State under s. 176”. In other words, there is always a discretion for an Inspector to vary the terms of the notice even if there is no appeal under grounds (f) or (g). 6. The Appellant’s evidence will show: (i) that the time for compliance is woefully inadequate and (ii) the requirements of the notice are excessive. The Appellant will invite the Inspector to amend the notice accordingly, should the ground (a) appeal fail. … a) The enforcement notice scheme would still result in a block of flats of a similar scale, height and massing to the appeal scheme; b) the enforcement notice scheme would have no control over the appearance of the roof of either the front or rear elements of the building. There would be nothing to ensure that the materials or design would be appropriate in context; c) the front section of the building would necessarily be of an inappropriate design by the creation of a shallow-pitched roof; d) the enforcement notice scheme would result in the loss of at least two 2-bedroom flats and the conversion of a 3-bedroom flat to a 2-bedroom flat. It is possible that further accommodation would be lost because the 9.5m height limitation, with a pitched roof in compliance with Building Regulations, may mean that three storeys of residential accommodation could not be accommodated. Further, there will be a loss of accommodation during the extensive building works; e) There would be no significant change in the impact of the development in terms of overlooking, loss of privacy and other impacts on neighbouring properties. Variations to the notice a) There is no restriction on the Inspector entertaining new grounds of appeal at any stage in the process. The only issue is whether any party is prejudiced by their introduction. The LPA is clearly not prejudiced by their introduction as it has been aware of the grounds raised for many months; b) It is simply wrong for the LPA to rely on regulation 21 of the 2002 Rules as providing a basis for excluding those grounds of appeal. Regulation 21 begins “Where a decision of an inspector on an appeal for which an inquiry has been held is remitted by any court to the Secretary of State for rehearing and redetermination…”. This is not such a case: the last Inspector did not hold an Inquiry. The matter has therefore been remitted without any restriction on the matters which can be canvassed as there is no equivalent rule to Regulation 21 in the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002/2683; c) Most importantly, the Inspector has a power to vary the terms of the enforcement notice if she is satisfied that the variation will not cause injustice to the Appellant or the LPA: s 176(1)(b). As paragraph P174.11 of the Planning Encyclopaedia notes, grounds (f) and (g) “do not go to the validity of the notice, and excessive or unreasonable requirements may instead be varied by the Secretary of State under s. 176”.

Annex 4: Mr Warden’s statement

(g) Annex 4: Mr Warden’s statement

[11]The proof of evidence of Mr Warden included the following: …2.1 Background to dispute2.1.1 Planning permission was granted in 2005 for a scheme of nine flats (reference TP/04/2595). The plan showing the layout, floor plans and elevations of this development is missing from the planning file. This drawing is listed on the decision notice as reference PR/16-18/LAYOUT/A (a copy of this decision notice is provided at Appendix 2). The following three drawings remain in the planning file: 1. PR/16-18/LAYOUT/A dated October 2004 (a copy of this drawing is provided at Appendix 3) 2. PR/16-18/LAYOUT/A dated March 2005 (marked revision ‘B’ by hand) (a copy of this drawing is provided at Appendix 4) 3. PR/16-18/LAYOUT/B dated June 2005 (a copy of this drawing is provided at Appendix 5)2.1.2 Each of these drawings is marked by hand superseded by the then case officer, Ms Emma Allenden (see section 2.6 below). The Council has obtained a further plan relating to this application. Initially a copy of this plan was provided by a neighbouring resident and later, in May 2009, I took a copy of the same drawing from the Parkway Developments Limited (the developer of Ashbourne Lodge, which adjoins the appeal site to the east). This drawing is also referenced PR/16-18/LAYOUT/A and dated March 2005 but has the then case officer’s hand written notation “TP/04/2595 Revised Plan” (the ‘Council’s Plan’). A copy of this plan is provided at Appendix 6. I consider, on the balance of probabilities, that it was this plan that went on to become the approved plan for application TP/04/2595. The basis for my conclusion is discussed within sections2.1.3 The Appellant has provided another plan, which they claim is the approved plan for application TP/04/2595. Again, this plan is referenced PR/16-18/LAYOUT/A, it is dated May 2005 and the copy most recently provided to the Council, in August 2008, is stamped “PERMISSION GRANTED SUBJECT TO CONDITIONS 31 AUG 2005” (the ‘Appellant’s Plan’). A copy of this plan is provided at Appendix 6. Notwithstanding this stamp, the Council disputes the authenticity of this plan. The reasons for this are discussed in sections 2.2 to 2.8 below. In light of the evidence below, I consider, on the balance of probabilities, that this is not the approved plan for application TP/04/2595. … 2.2.20 Overall, I find the purported change in the use of this field [a box which on other plans stated “REVISIONS” but on the Appellant’s plan stated “SUBMITTED PLANNING DRAWINGS”]part way through the planning application; the absence of the use of this term [“SUBMITTED PLANNING DRAWING”] on any other reported application following an extensive search; and, the past tense of the term itself each suggest that this was not a term added at planning application stage but added sometime later. Having regard to the fact that this plan shows a marking purporting to be the Council’s approval stamp, this brings significant question over the authenticity of this drawing. … 2.3.4 The height of the building was not merely a descriptive narrative in the committee report, but was central to the acceptance of the scheme. The Statutory Declaration of the then case officer, Ms Emma Allenden at Appendix 11 states, referring to the ‘Council’s Plan’ “This plan clearly shows the height of the building at 9.5m and this is the height that I specifically referred to in my Committee Report on more than one occasion. The height of the building was the subject of discussions between both Mr Andy Higham and I and Mr Andy Koumis and I where reductions in building height were required to make the scheme acceptable”. I do not accept that there was an error in relation to the height of the building within the report to Planning Committee. … 2.4.3 The ‘Council’s Plan’ is marked as a revised plan by the then case officer, as discussed in section 2.2 above, this is the plan that Mr Andy Bennett obtained a copy of as a result of consultation on 17th August 2005, only 13 days before planning committee. This would have been after the reports to that same committee would have been completed ready for circulation to Members. … 2.6.5 At Appendix 12 I provide the Statutory Declaration Mr Andrew Martin Bennett. Mr Bennett confirms that he provided the Council with a plan in May 2009. Not only is it clear from Mr Bennett’s description of this plan that this is the plan that I refer to as the ‘Council’s Plan’, but I myself scanned and copied this plan when it was received from Mr Bennett. Mr Bennett describes how he came to hold this drawing, namely by obtaining a copy from the Council on 24th August 2005; some 7 days before the Planning Committee meeting. He provides a copy of the receipt, along with the consultation letter dated 17th August 2005 that prompted him to visit the Council offices. Finally, he provides a copy of the committee report that he obtained from the Council. It is clear from Mr Bennett’s account, as well as the documents he still holds, that he closely followed the planning application at the appeal site in 2005. He confirms, however, that, in respect of the ‘Appellant’s Plan’, he had “never seen this drawing” until I sent it to him, which I can confirm was shortly before his letter dated 14th January 2011. I can also confirm that a review of the Council’s records has returned the same receipts provided by Mr Bennett. They are carbon copies and I, therefore, see no need to produce them again in evidence. …2.2 to 2.8 below.

Annex 5: Enfield’s written closing submission

[12]Enfield’s written closing submissions dated 23 March 2011 included the following: … The scope of the inquiry 3. The Appellant has already sought to introduce further grounds (g) and (f) and this was refused by PINs. 4. It is submitted by the Appellant that it is wrong to rely on regulation 21 of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 as it is said that the regulation applies only to where a decision of an inspector on an appeal for which an inquiry has been held is remitted. It is said that there was no inquiry in this case and that as there is no equivalent rule in The Regulations for Written Representations, there is no restriction on which matters can be canvassed. 5. It is submitted that it cannot be the intention of those Regulations for Written Representations that there is no restriction on which matters can be canvassed. It cannot be that simply because an appeal is heard by written representations, there is a wider discretion conferred on the Inspector hearing the re-determination. 6. In any event, the scope of the re-determination hearing cannot be decided in the absence of considering the original grounds of appeal or what led to the re-determination inquiry. The original ground of appeal was only ground (a). The reason for re-determination does not give rise to issues of ground (f) or ground (g). 7. Through Mr Warden, the Council does agree that the time limit could be extended to six months. There is no evidence that the Council has obtained to produce to the inquiry because the scope of the appeal did not include ground (g). The evidence is his instructions from a senior manager within Building Control. 8. But there is no new material evidence that has been presented by the Appellant that should persuade the Inspector that the situation is now different. Mr Koumis provides no plans or building regulations to say that the scheme cannot be built and he produces no plans or descriptions of lesser steps. From Perrett [in the Court of Appeal at paragraphs 16 and 17]: The Secretary of State may decide that it is appropriate to rehear the appeal de novo on the particular ground or grounds that led to the successful appeal to the court. He may decide that other matters should also be dealt with (for example, to consider whether there has been a material change of circumstances, including any change of policy, since the original decision was taken). He is not, however, obliged to approach the whole appeal de novo or to allow a party to open up grounds that were not raised in the appeal to the court. Mitting J found in favour of the Secretary of State on this issue. In my judgment he was right to do so. 9. The Inspector has a discretion but not an obligation. There is nothing new or materially significant that means that discretion should be exercised in this case to widen the scope of the original appeal. 10. If, in the alternative, the Inspector could vary the notice under ground (g) or (f) under s. 176, again, in the submission of the Council, there is no credible evidence on which to base such a variation. The suggestion that it will take until March 2013 to complete the works is exaggerated. There is no reason why work cannot start until June 2012 and there is no reason why it should take 6 months to prepare plans and appoint a contractor. The letter from the one builder approached does not give enough information. As to lesser steps, again, there are no plans put forward to this inquiry to suggest what variations to the Notice could or should be made. It would be prejudicial to the Council if the EN was varied to require lesser steps when there had been no substantive evidence on what those lesser steps could be. The Plans Observations on the drawings 11. On the balance of probabilities the plan for which permission was granted was the “Council’s Plan” for the following summary of reasons:a. The date of receipt;b. The absence of a stamp or marking indicating it is a revised plan;c. The use of the wrong reference number;d. The use of the term “Submitted Planning Drawings” that has not been found on any other plan for this site or on any other planning application drawing submitted by this agent at 15 Councils;e. The absence of the site boundary to the “Prop Second Floor Plan” and “Prop First Floor Plan” and the relative positioning of the OS plan. Such features add clarity to plans and there is no reason to remove them;f. The lack of dimensioned distances from site boundaries;g. Notations to elevations;h. Illustrative detailing;i. Flat 7 containing only one bedroom when this was an application for 9 x 2 bed scheme; Observations on the chronologyj. Successive plans reduce the height of the building except the Appellant’s plan. The plans go from a height of 11.2m to 10.5m and then to 9.5mk. The rear projection and gable roof appear on the Appellant’s plan only. There is no natural progression of such amendments; Statutory Declarations and evidence provided by othersl. Mr Forrester, the party wall surveyor, has provided a statutory declaration confirming his correspondence with the Council that he had never seen the “Approved Plan”. The Plan that he had on his file was taken by Mr Warden and is produced at Appendix 14. It is not the plan that purports to be the Approved plan even though Mr Forrester was engaged in January 2006 some months after planning permission had been granted;m. Mr Higham has given evidence that the Appellant’s Plan does not accord with his memories of the scheme. He said in oral evidence that some sites “stick in the mind” and that with this one “clearly there were discussions about height” and that what stood out to him was the “shallow pitch of the roof”. When asked how sure he was that the Council’s plan was the one that went to committee he said “as sure as I can be… the dimensions in the report. Sticks in my mind…no recollection of AGH2. Not what seen or familiar with”. What is clear from his evidence is that it is the Council’s plan for which permission was granted. In his statutory declaration he confirmed that …In particular, the 10.5m height annotated on the plan does not accord with the dimension stated twice in the Committee report. Furthermore, the scheme shown on this plan (AJH2) incorporates a much steeper roof profile resulting in a more substantial roof element than I recall from my involvement in the scheme approved under ref TP/04/2595. In addition, the roof design of the development fronting Hazelwood Lane incorporates gable for the three storey element and my recollection is one of a stepped arrangement with hipped ends at all levels. From a closer inspection of the plan, the annotation of 6 metres rear of the building to the rear garden boundary with No 11 Park Avenue is missing which also does not accord with my recollection of the approved plan.n. Mr Bennett gave up his valuable time to give evidence to the inquiry. He was quite clear that he had re-checked his records and he had found the petty cash slips and found that it was on 24th August that he had obtained the plan. He pointed out that he received the letter from the Council dated 17th August 2005 about the new plans on 22nd August and so it made sense that he would have visited the Council 2 days later to look at the plan. He confirmed that he would have looked through the file and he did not see any plans showing the development at 10.5m high. When pressed, he was doubtful that he could have missed it. As between the plan he had obtained from the Council and the Committee report (which he had read) he said that they “tied in very well”.o. Ms Emma Allenden was not available to give oral evidence to the inquiry. As has been explained, she is on maternity leave and is away with her family. She has provided two statutory declarations to the Inquiry and as a result her written evidence is full and provides clear explanations as to her recollection. It is submitted that it is obvious from her evidence that she knew exactly why she was providing a statutory declaration and that there is nothing vague about the evidence she gives. She confirms that i. She recalls the case well ii. She had many meetings with the applicant, Mr Andy Koumis, in relation to making amendments to the schemes. In particular, scheme TP/04/2595 had a number of amendments prior to its approval and a number of meetings took place between the applicant and her. iii. The height of the building was the subject of discussions between Mr Koumis and her where reductions in building height were required to make the scheme acceptable iv. She does not recall the Appellant’s Plan as one that she assessed as part of the determination of the planning application. She does not recognise the writing of the reference number and she would not have written the reference number in that way – it is second nature to write references with letters TP followed by a slash. The plan is different from that assessed due to the appearance of the elevation to Hazelwood Lane which has gable end roofs. She had discussions with Mr Koumis as to the hipped roofs as opposed to gable end roofs in order to resolve the appearance of the proposed building in the street scene. The first floor terrace looks different and she does not recall the irregular shape where the first floor staircase projects or the narrow strip of landscaping. v. She says that the height at 10.5m is not the height of the proposal that she assessed in the report to planning committee. She says that this was not the revised plan upon which she requested a 14 day period of consultation or the plan that went to planning committee [or] that approved by the Council vi. She also confirms that she had never seen the letter from Mike Bardy produced by Mr Koumis and that the word “chambers” to describe where meetings took place at the Council stood out to her as very unusual. She does not recall a meeting with Mr Bardy on 9th May 2005 to discuss the site. She provides that if there was an issue with Building regulations then she would have advised that that would not justify an increase in the size of a building. She does not recall any discussion relating to ground levels and says that her recollection was that the application site was a level site with no notable variations in site level. The Committee report vii. The committee report makes clear that 9.5m was a critical factor in the decision – it was not descriptive narrative. On page 38 it states that The current scheme involves an increase from two storey to three storey although the maximum height of the development would only increase by 0.5metres… The building proposed would be 3 stories high with an overall height of 9.5m. The approved scheme was 2 stories high at 9m Due to the previous decision this increase in height of 0.5m… viii. The report sets out that the previous scheme was for a height of 9m and that this one is 0.5m higher and with an overall height of 9.5m. It is clear that what permission was granted for was 9.5m high and that the plan that his report talked to was one showing a development 9.5m high. This was not a mistake because it clearly references the previous scheme. This was not a mistake because Mr Higham said in XX that the Committee report is written up by a case officer and he checks it. This was not a mistake because Emma Allenden is clear that it is the Council’s plan that was approved by the Council. 12. Mr Koumis has been unable to help on the matter of the plans. He says he was never sent an original of the Approved Plan. He could not locate Mr Bardy or his previous partner or anyone who could assist him. He left “planning” matters to Mr Bardy and “control” to Mr Bardy. It was Mr Bardy who produced the plans and not him. There is nothing further that Mr Koumis can say about plans he has not produced particularly when he states that he has never seen the original. Neither can Mr Koumis help any further with the issue of the letter he produces from Mike Bardy regarding the increased height. He does not know that it was ever sent, that it was ever received, he is not aware of a response, he does not know whether a follow up letter was sent. 13. The Public Agenda would have had the Committee report attached and would have been available. It would be reasonable to assume that Mr Koumis, on his first development, would be interested in what that report said. He or his agent could have viewed it as a publicly available document. 14. Overall, it is obvious that we will probably never know what happened to the plan that has gone missing from the Council’s file or why Mr Bardy produced the Appellant’s plan. For these purposes, it is necessary for a finding on which plan is the one that is most likely to have gone out to consultation and the most likely to have gone to planning committee. Mr Bennett has confirmed that following his letter about revised plans, the Council’s Plan is the one that he obtained for the purposes of consultation. Ms Allenden says the Council’s Plan is the one that went to Committee. Mr Higham says the Council’s Plan is the one that went to Committee. In my submission, it is obvious from the wording of the committee report that permission was granted for 9x2 bedroom flats and that the height was 9.5m. The logical conclusion is that the plan that accompanied that report also showed 9x2 bedroom flats and a height of 9.5m. … 20. The scheme that would result from the requirements of the EN would not be uncontrolled or out of keeping with the character of the area. It specifies the ridge height (with a suggested variation in the EN to measure from a fixed point), it specifies that the mansard is to be removed, it specifies that the roof is to be shallow pitched and hipped. Mr Warden explained that this does specify the design and explained how the roof would be hipped and that it is achievable and that the Appellant is not constrained to tiles that serve a 22 degree pitched roof. 21. This would result in a building without the dominant mansard and would result in a lower form of residential development. The hipped roof is not uncommon in the area (Mr Warden referred to Ashbourne Lodge when giving evidence). The overall effect would be a development sitting more comfortably in the townscape rather than dominating it. The effect of the development on neighbours’ living conditions with particular regard to overlooking and whether it is overbearing 22. This mass, bulk and height serves to provide a further floor of overlooking and a further floor of bulk which creates an overbearing impact on neighbouring development. 23. In particular, Hazelwood Court is significantly impacted (particularly from the flat 8 and garden shown at photograph S), Numbers 20 and 22 Hazelwood Lane are looked onto and the rear properties on Park Avenue are 2 storey properties that are faced with a rear elevation comprising 4 storeys of development. 24. The table at A1.7 provides for window to window distances of at least 25m. It is right that there were not perfect separation distances for the scheme granted permission. It is right that there will not be perfect separation distances if the scheme is altered to comply with the EN. However, as Mr Warden said, as a building gets higher, it is expected that separation distances increase. Here, that is not the case. 25. Overlooking, privacy and overbearing impact is not just about distances. It is about the feeling of being over looked, it is about the feeling of enclosure. As Mr Warden said, the further floor provides for occupiers to feel that they are being looked down upon from the upper storey or terrace. The terraces may be screened but the effect is that when the screening adds to the feeling of enclosure for neighbouring occupiers and without the screening the overlooking is obvious. 26. For the Appellant to submit that those properties, flat 8, do not feel an unacceptable impact is, it is submitted, not credible when that unit is faced with development right up to the boundary and from his garden of only 4m in length. Compliance with the EN would resolve that unacceptable impact. 27. The residents of Ashbourne Lodge are faced with substantial additional bulk at roof level by virtue of the Mansard Roof. The gardens of 20 and 22 Hazelwood Lane are faced with the bulk of the mansard roof to the rear and the projection from the front block and the adjacent substantial gable end. The third floor windows to the mansard roof of the rear block look down on to the rear gardens of numbers 20 and 22. The residents of Park Avenue are also faced with the additional bulk of the rear block from their dwellings and from their rear gardens. 28. The sense of overlooking and overbearing impact is significant and is harmful. The suggested steps in the EN would serve to reduce the additional bulk so as to reduce the impact. … 31. The Council acted fairly with regard to this development. It did not require demolition. The requirements of the EN will provide a development that is of lesser height and lesser massing, the appearance is controlled by virtue of the design of the roof being hipped and shallow pitched, the shallow pitched roof is not an inappropriate design but a solution to reduce the bulk and effect of height, there would be a significant change in the impact in terms of overlooking and sense of enclosure for neighbours. … The scope of the inquiry The Plans Observations on the drawings a. The date of receipt; b. The absence of a stamp or marking indicating it is a revised plan; c. The use of the wrong reference number; d. The use of the term “Submitted Planning Drawings” that has not been found on any other plan for this site or on any other planning application drawing submitted by this agent at 15 Councils; e. The absence of the site boundary to the “Prop Second Floor Plan” and “Prop First Floor Plan” and the relative positioning of the OS plan. Such features add clarity to plans and there is no reason to remove them; f. The lack of dimensioned distances from site boundaries; g. Notations to elevations; h. Illustrative detailing; i. Flat 7 containing only one bedroom when this was an application for 9 x 2 bed scheme; j. Successive plans reduce the height of the building except the Appellant’s plan. The plans go from a height of 11.2m to 10.5m and then to 9.5m k. The rear projection and gable roof appear on the Appellant’s plan only. There is no natural progression of such amendments; l. Mr Forrester, the party wall surveyor, has provided a statutory declaration confirming his correspondence with the Council that he had never seen the “Approved Plan”. The Plan that he had on his file was taken by Mr Warden and is produced at Appendix 14. It is not the plan that purports to be the Approved plan even though Mr Forrester was engaged in January 2006 some months after planning permission had been granted; m. Mr Higham has given evidence that the Appellant’s Plan does not accord with his memories of the scheme. He said in oral evidence that some sites “stick in the mind” and that with this one “clearly there were discussions about height” and that what stood out to him was the “shallow pitch of the roof”. When asked how sure he was that the Council’s plan was the one that went to committee he said “as sure as I can be… the dimensions in the report. Sticks in my mind…no recollection of AGH2. Not what seen or familiar with”. What is clear from his evidence is that it is the Council’s plan for which permission was granted. In his statutory declaration he confirmed that n. Mr Bennett gave up his valuable time to give evidence to the inquiry. He was quite clear that he had re-checked his records and he had found the petty cash slips and found that it was on 24th August that he had obtained the plan. He pointed out that he received the letter from the Council dated 17th August 2005 about the new plans on 22nd August and so it made sense that he would have visited the Council 2 days later to look at the plan. He confirmed that he would have looked through the file and he did not see any plans showing the development at 10.5m high. When pressed, he was doubtful that he could have missed it. As between the plan he had obtained from the Council and the Committee report (which he had read) he said that they “tied in very well”. o. Ms Emma Allenden was not available to give oral evidence to the inquiry. As has been explained, she is on maternity leave and is away with her family. She has provided two statutory declarations to the Inquiry and as a result her written evidence is full and provides clear explanations as to her recollection. It is submitted that it is obvious from her evidence that she knew exactly why she was providing a statutory declaration and that there is nothing vague about the evidence she gives. She confirms that i. She recalls the case well ii. She had many meetings with the applicant, Mr Andy Koumis, in relation to making amendments to the schemes. In particular, scheme TP/04/2595 had a number of amendments prior to its approval and a number of meetings took place between the applicant and her. iii. The height of the building was the subject of discussions between Mr Koumis and her where reductions in building height were required to make the scheme acceptable iv. She does not recall the Appellant’s Plan as one that she assessed as part of the determination of the planning application. She does not recognise the writing of the reference number and she would not have written the reference number in that way – it is second nature to write references with letters TP followed by a slash. The plan is different from that assessed due to the appearance of the elevation to Hazelwood Lane which has gable end roofs. She had discussions with Mr Koumis as to the hipped roofs as opposed to gable end roofs in order to resolve the appearance of the proposed building in the street scene. The first floor terrace looks different and she does not recall the irregular shape where the first floor staircase projects or the narrow strip of landscaping. v. She says that the height at 10.5m is not the height of the proposal that she assessed in the report to planning committee. She says that this was not the revised plan upon which she requested a 14 day period of consultation or the plan that went to planning committee [or] that approved by the Council vi. She also confirms that she had never seen the letter from Mike Bardy produced by Mr Koumis and that the word “chambers” to describe where meetings took place at the Council stood out to her as very unusual. She does not recall a meeting with Mr Bardy on 9th May 2005 to discuss the site. She provides that if there was an issue with Building regulations then she would have advised that that would not justify an increase in the size of a building. She does not recall any discussion relating to ground levels and says that her recollection was that the application site was a level site with no notable variations in site level. vii. The committee report makes clear that 9.5m was a critical factor in the decision – it was not descriptive narrative. On page 38 it states that viii. The report sets out that the previous scheme was for a height of 9m and that this one is 0.5m higher and with an overall height of 9.5m. It is clear that what permission was granted for was 9.5m high and that the plan that his report talked to was one showing a development 9.5m high. This was not a mistake because it clearly references the previous scheme. This was not a mistake because Mr Higham said in XX that the Committee report is written up by a case officer and he checks it. This was not a mistake because Emma Allenden is clear that it is the Council’s plan that was approved by the Council.

Annex 6: closing statement for Mr Koumis

[13]The written closing statement dated 23 March 2011 on behalf of Mr Koumis included the following: (ii) The “Appellant’s Plan” 4. Before the Inquiry there are several plans which bear the same reference as that set out in the decision notice for the 2005 permission. However one, and only one, plan carries the Council’s standard stamp stating that the scheme has been approved subject to conditions on 31 August 2005. It might be commented that it is wholly extraordinary that a local planning authority come to an Inquiry – and indeed a previous appeal – saying “although it bears our stamp, it is not the approved plan. Some other plan is approved – but we don’t know where it is”. 5. The presence of the stamp is a matter to which Mr Warden attaches little weight. However, it is a crucial point, not least because Mr Higham and Mr Warden accepted in XX that the stamp appears to be that of the Council. They produce no evidence to say that it is not. Mr Warden suggests that it may have been manipulated. But the Council do not suggest that the Appellant dishonestly asserts that this is the correct plan. 6. Mr Warden has engaged in a detailed critique of the Appellant’s plan. Those criticisms are generally without basis, and certainly do not amount to a reason to conclude that a stamped approved plan is not what is seems to me. Taking each in turn:a. There is nothing to be gained from the fact that the Council stamped two plans as having been received on the same day. It does not suggest that either was or was not the one that was ultimately approved;b. The absence of an indication that the plan is revised goes nowhere. It is plain that not all revised plans received by the Council are marked accordingly: see for example the plans exhibited at DW4 and 5;c. The reference number omits a “/”. However, it is clear from Mr Warden’s survey of the plans of at DW15 that sometimes the reference number is added to a stamp which reads “TP…”, in which case no “/” is added. In other cases the case number is stamped on, and “TP” added in manuscript. Further, a plan which has seemingly always been in the Council’s possession is marked without a “/” (DW5);d. The terms “Submitted Planning Drawings” merely emphasises that this architect was wholly inconsistent in the headers he included in plans. DW15 emphasises this to be the case – there is no pattern at all.e. There are obviously different features of this plan compared to others including the Council’s plan; but there is no reason why all annotations should remain the same. Illustrative detailing may well vary on different iterations of plans. The 6m separation from the site boundary was a matter which had clearly been settled some time before July 2005 and therefore it was superfluous to repeat the same on later plans;f. Notations to elevations – where height is a key issue – is obviously a sensible matter to include. As Mr Warden notes, there did not appear to be a site survey so noting a potential inconsistency in levels was prudent;g. Flat 7 was as much a 2 bedroom flat with a kitchen diner as it was a one bed flat with a separate lounge. Mr Warden accepted the same but felt that the configuration of the kitchen may cause difficulties. Of course, internal layout of the kitchen could have changed once the building was erected;h. The “further errors” (at 2.2.38) only serve to show that the Appellant’s plan was a later iteration. 7. Contrary to Mr Warden’s assertion, Mr Higham first saw the Appellant’s plan in May 2007; he said the same twice on oath and once in a statutory declaration. Mr Warden’s apparent resistance to this serves to emphasise that he has strived mercilessly to discredit this plan. He has failed to do so. Further Mr Koumis produces a covering letter explaining the revised plan and change of heights, showing that a 10.5m building was presented to the Council in 2005. 8. All the later “party wall” plans show a 10.5m scheme. The suggestion that this plan is not credible because it would be too wide for the site ignores the fact that this is not a scale drawing, and carries the warning “do not scale”. For that reason all the plans show a height scale in figures, to avoid “scaling off” errors. 9. It is also noted that the key witness for the Council is of course Mrs Allenden (see paragraph 5.8 of their Statement of Case). She is on maternity leave but we are told would have come but for a family holiday. The Council can – and did – elect for a changed Inquiry date and could have explained their need to do so on the basis of the absence of their key witness. As a result, we have not heard live evidence from the case officer or been able to contest the accuracy of her recollections. (iii) The Council’s plan 10. We turn then to the plan that the Council says is approved. The provenance of that plan is far less credible than that of the Appellant. The Council says it received an excerpt from this plan from a neighbour; but that plan did not bear the correct reference and on no arguable basis could it be the plan referred to in the 2005 permission: there was simply no reason to believe that was the plan. 11. The plan now produced is from Mr Bennett. 5 ½ years ago he attended the Council offices. He was provided with a file: we know not whether it was the working file or the public file, nor whether all the plans were on that file. He photocopied a plan from a file where there were other plans. He accepts he may have copied the wrong plan, although he thinks it unlikely. It was not the “approved” plan because no consent had been given at that date he copied the plan. He is inconsistent in the dates he said he visited. The Council’s own records, of course, do not show this plan in any form – approved or otherwise. 12. In conclusion, we submit that on the balance of probabilities the Appellant’s plan is the approved plan. Perhaps Mrs Allenden made a mistake in her report to Committee. Perhaps her (untested, due to her absence) recollection was wrong. But what the Inquiry has is a stamped approved plan showing clearly a building of 10.5m in height. Planning merits(i) The issue for the Inspector 13. The starting point for any analysis of the appeal scheme is what will be constructed if the appeals are dismissed. It is more than a “fallback” position because it is what the Appellant must do, under the terms of the enforcement notice, if the appeals are dismissed. It is therefore a highly material consideration to the determination of this appeal. It has the following features: a. Three storeys in height; b. 8m eaves; c. Unknown roof form. Mr Warden has his firm view as to what a hipped roof with a shallow pitch would look like. However, it is obvious that a hipped roof and a “shallow” pitch could take many different forms. There is no certainty as to what would be created by the EN scheme; d. Unknown materials; e. No planning conditions. 14. Mr Warden accepts that the backstop is determined by the approved scheme, whether 10.5m or 9.5m. Mr Warden accepted my formulation of the fundamental question for the Inspector, namely whether the features of the appeal scheme which are not present in the EN scheme would unacceptably affect the amenities of neighbouring properties or cause unacceptable harm to the character and appearance of the area. 15. Further Mr Warden accepted in XX that the Inspector must strike a balance between the positive aspects of the scheme in the form of provision of additional units, efficient and effective use of the site and maximisation of density; and those alleged negative aspects which form the reasons for refusal/issuing the enforcement notice. 16. In short, the question which we say is posed by this appeal is whether any additional harm caused by the elements of the scheme which are attacked by the enforcement notice is sufficient to outweigh the policy objectives in PPS3, the London Plan and the Core Strategy to deliver housing on previously developed land, maximising the intensity of use and using the land efficiently and effectively. 17. On that point, it is noted that Mr Warden in his proof of evidence fails to mention paragraphs 36, 40, 45 and 50 of PPS3; fails to highlight the push towards intensification of use in 3A.2, 3A.3 and 4B.1 (the first bullet point) of the London Plan; and the support in Core Strategy CP5 and paragraph 5.45 for densification. These are significant omissions – and there is no attempt at all to balance these factors against the harm that he finds to exist. His is effectively a design appraisal but not a rounded planning assessment. … (v) Amenity issues 23. The issues appear limited to overbearing impact and overlooking/privacy issues (XX Warden). The logical approach to this development is to take each part of the development in its own right – it is in two distinct blocks, with different features and different impacts. The Inspector will have seen the points in detail so again they do not require extensive repetition but the following points are noted: a. The Park Avenue properties are some distance from the building, and the change of height and roof design can have no more than a negligible impact. There is no overlooking issue with these properties; b. Overlooking of Ashbourne Court is not materially worse by virtue of further windows in the rear section. The structures are separated by a considerable distance, and the (slightly) increased mass and height cannot be said to have such an adverse effect as to justify refusal; c. The views into Hazelwood Court are extremely limited so overlooking is very limited. The stairwell window can be obscure glazed. The EN scheme would also present significant built form immediately on the boundary, and therefore the change is of limited significance; d. The views into 20-22 Hazelwood Lane are again very limited indeed, so overlooking must be limited here. The overbearing impact has been exaggerated by zoomed photographs from the access road, rather than the rear gardens. 24. Ultimately, the Inspector will form her own view on these issues having seen the site. However, two points are emphasised again: (i) the question is the additional harm from the elements not present in the EN scheme;(ii) if the Council is wrong and the permitted scheme is 10.5m, the differences are very limited indeed. There are no daylight/sunlight issues. Mr Wilson is obviously mistaken in saying that the appeal site blocks his sunlight as 1B Hazelwood Road is to the south of the appeal site. Variations to the notice … (ii) Time for compliance 29. Very extensive works would be required to comply with the notice. Mr Koumis has obtained a time estimate suggesting 20 months is required. The Council do not produce rival evidence, but take the view that 6 months would be sufficient. There is no evidence that the works could be done in the winter. Such a time limit would – on the first class evidence of Mr Koumis – still be insufficient and therefore the period of 20 months is still sought. Conclusion 30. The Council’s analysis of the planning merits is flawed because: a. It wrongly assumes consent was granted for a 9.5m rather than 10.5m scheme. That error infects the entirety of the Council’s case. Even if the Appellant’s case is not accepted on that point, the further errors below still result in a flawed analysis; b. It misreads the context of the site as suburban residential, when it is close to Green Lanes and of a robust and mixed townscape character; c. It exaggerates harmful effects through the way it has presented its case, rather than producing a balanced analysis…; d. It fails to balance the significant benefits of the scheme in terms of provision of accommodation against the alleged harm. This is a major error on the Council’s part. 31. In short, even if there is some limited harm from this scheme beyond that in the EN scheme – it is hugely outweighed by the benefit of making efficient and effective use of a site at an appropriate density and by providing two additional residential units in this scheme. For those, and all the reasons in the Appellant’s evidence, the appeals should be allowed. a. There is nothing to be gained from the fact that the Council stamped two plans as having been received on the same day. It does not suggest that either was or was not the one that was ultimately approved; b. The absence of an indication that the plan is revised goes nowhere. It is plain that not all revised plans received by the Council are marked accordingly: see for example the plans exhibited at DW4 and 5; c. The reference number omits a “/”. However, it is clear from Mr Warden’s survey of the plans of at DW15 that sometimes the reference number is added to a stamp which reads “TP…”, in which case no “/” is added. In other cases the case number is stamped on, and “TP” added in manuscript. Further, a plan which has seemingly always been in the Council’s possession is marked without a “/” (DW5); d. The terms “Submitted Planning Drawings” merely emphasises that this architect was wholly inconsistent in the headers he included in plans. DW15 emphasises this to be the case – there is no pattern at all. e. There are obviously different features of this plan compared to others including the Council’s plan; but there is no reason why all annotations should remain the same. Illustrative detailing may well vary on different iterations of plans. The 6m separation from the site boundary was a matter which had clearly been settled some time before July 2005 and therefore it was superfluous to repeat the same on later plans; f. Notations to elevations – where height is a key issue – is obviously a sensible matter to include. As Mr Warden notes, there did not appear to be a site survey so noting a potential inconsistency in levels was prudent; g. Flat 7 was as much a 2 bedroom flat with a kitchen diner as it was a one bed flat with a separate lounge. Mr Warden accepted the same but felt that the configuration of the kitchen may cause difficulties. Of course, internal layout of the kitchen could have changed once the building was erected; h. The “further errors” (at 2.2.38) only serve to show that the Appellant’s plan was a later iteration. Planning merits a. Three storeys in height; b. 8m eaves; c. Unknown roof form. Mr Warden has his firm view as to what a hipped roof with a shallow pitch would look like. However, it is obvious that a hipped roof and a “shallow” pitch could take many different forms. There is no certainty as to what would be created by the EN scheme; d. Unknown materials; e. No planning conditions. a. The Park Avenue properties are some distance from the building, and the change of height and roof design can have no more than a negligible impact. There is no overlooking issue with these properties; b. Overlooking of Ashbourne Court is not materially worse by virtue of further windows in the rear section. The structures are separated by a considerable distance, and the (slightly) increased mass and height cannot be said to have such an adverse effect as to justify refusal; c. The views into Hazelwood Court are extremely limited so overlooking is very limited. The stairwell window can be obscure glazed. The EN scheme would also present significant built form immediately on the boundary, and therefore the change is of limited significance; d. The views into 20-22 Hazelwood Lane are again very limited indeed, so overlooking must be limited here. The overbearing impact has been exaggerated by zoomed photographs from the access road, rather than the rear gardens. Variations to the notice Conclusion a. It wrongly assumes consent was granted for a 9.5m rather than 10.5m scheme. That error infects the entirety of the Council’s case. Even if the Appellant’s case is not accepted on that point, the further errors below still result in a flawed analysis; b. It misreads the context of the site as suburban residential, when it is close to Green Lanes and of a robust and mixed townscape character; c. It exaggerates harmful effects through the way it has presented its case, rather than producing a balanced analysis…; d. It fails to balance the significant benefits of the scheme in terms of provision of accommodation against the alleged harm. This is a major error on the Council’s part.

Cited in 2 later judgments