Nisbet, R (On the Application Of) v Secretary of State for Communities & Local Government & Anor [2014] EWHC 1202 (Admin)

[2014] EWHC 1202 (Admin)

Case No CO/15922/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Bristol Civil Justice Centre

2 Redcliff Street

Venue Bristol

Date Friday, 17th January 2014

BS1 6GR

B e f o r e:

MR JUSTICE LEWIS

Between

THE QUEEN ON THE APPLICATION OF NISBETClaimant

SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENTDefendant

WESTMINISTER CITY COUNCIL

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Mr Sheppard appeared for Claimant

Mr Wald appeared for Defendant

J U D G M E N T

[1]MR JUSTICE LEWIS: This is an application pursuant to section 288 of the Town and Country Planning Act 1990, seeking to quash the decision of an inspector dismissing an appeal against the grant of planning permission.

[2]In brief, the planning authority granted permission for, amongst other things, a roof hatch giving access to a flat roof. That permission was subject to conditions including condition 4 which states that:

"You must not use the roof of the building for sitting out or for any other purpose. You can however use the roof to escape in an emergency or for maintenance purposes."

[3]The claimant, Mr Nisbet, contends that the imposition of that condition is unlawful and contends that the inspector acted unlawfully or irrationality by upholding the condition.

[4]The factual background so far as material is as follows. The property which forms the subject of this application is 37 Belgrave Mews, North London. It forms part of a terrace of mews houses. The terrace faces the taller houses of Wilton Crescent which are a short distance away. The claimant wishes to utilise a roof space at 37 Belgrave Mews as a roof terrace for sitting out and for other amenity purposes. An application for planning permission for the creation of a roof terrace was refused in 2010. A second application was made in 2011 for the use of the flat roof as a terrace and for a roof access hatch. That too was refused. An appeal was dismissed as the inspector considered that the use of the roof as a terrace would lead to unacceptable levels of overlooking of the properties at Wilton Crescent.

[5]The claimant then applied for a certificate of lawfulness of a proposed use under section 192 of Town and Country Planning Act 1990 for use of the flat roof as an amenity space. That certificate was granted. The certificate says that the use that was lawful was use of the existing flat roof for amenity space. The reasons given for granting the certificate were that the use of the flat roof for amenity space purposes would not constitute a material change of use as it would be incidental to the enjoyment of the single family dwelling house and therefore did not require planning permission.

[6]There is also a section headed "informative" which said the following:

"For the avoidance of doubt this certificate does not include the unauthorised roof works including the air conditioning unit, the roof lights or any balustrade."

[7]At the stage that this certificate was granted the only lawful means of access to the roof from No 37 itself was it seems by ladder. Although therefore the use of the flat roof for amenity purposes would be lawful, the property lacked any lawful means by which the roof could be readily accessed for that purpose. It appears that the claimant had in fact already installed the roof access hatch even though he had no planning permission to do so. It was therefore a breach of planning control. The roof hatch was unauthorised and it was unlawful in planning terms.

[8]The claimant then applied for planning permission for, amongst other things, permission to retain the roof access hatch. That application was granted but subject to conditions including condition 4 which said that the flat roof could not be used for sitting out.

[9]The claimant appealed. One of his basic contentions before the inspector was this. He said that the use of the flat roof for amenity purposes was an existing lawful use. Indeed he had a certificate which said that the proposed use of the flat roof as amenity space would be lawful. He therefore contended that the imposition of a condition preventing the use of the flat roof for sitting out conflicted with his existing user rights as confirmed by the certificate. He submitted to the inspector that the imposition of the condition was therefore unlawful and irrational.

[10]In her decision the inspector did the following. First, she said set out the planning history. She noted that the history included the grant of the certificate of lawful use, stating that use of existing flat roof space for amenity space was lawful. She identified what she considered, which was the main issue, that is at paragraph 6 whether the disputed condition was lawful, necessary or reasonable having regard to the living conditions of the adjacent occupiers.

[11]The inspector then turned to the substance of the appeal. At paragraph 7 she noted that all the physical work, that is the roof hatch and other features were already in place. At paragraphs 8 and 9 she concluded that there would be a significant loss of privacy for those living in Wilton Crescent and there would be a perception of overlooking which would also be very intrusive for the occupants of Wilton Crescent if there were to be use for a roof terrace in this way.

[12]The inspector therefore said this at paragraph 10:

"I concur with the inspector who dismissed the appeal in January 2012 for works to facilitate a roof terrace, partly on the grounds that the levels overlooking would be unreasonable and would unacceptably effect the privacy of those neighbouring residents. In the case before me the potential for overlooking would be increased as no screen is present as was proposed in that previous appeal."

[13]The inspector then turned to the fact that the claimant had a certificate stating that the proposed use was lawful. The inspector considered the condition which it was said restricted that lawful use. She reminded herself of the three basic tests for a condition, namely it had to fulfill some planning purpose, that it should fairly and reasonably relate to the permitted development and that it should not be so unreasonable that no reasonable planning authority would impose it. She then said the following:

"12. Condition 4 was imposed in order to protect the privacy and environment of people in neighbouring properties. That is a proper planning purpose which seeks to limit or prevent unrestricted development in the wider public interest where that development would be likely to result in material harm. That harm would occur were the roof to be used as a sitting out area for the reasons described in paragraphs 8 to 10 of his decision. 13. Secondly, the condition fairly and reasonably relates to the development subject of the commission to which it is attached. That planning permission was for construction of a roof access hatch, three air conditioning units and an acoustic enclosure. Although the access hatch was not the sole subject of the permission, it was a most significant part of it because in its absence the only way occupiers of No 37 could gain access to the flat roof asides from by way of the neighbouring roof terrace at No 36 which is not in their control would be by an external leader or similar means. That this roof hatch was proposed in order to gain access to the flat roof so the latter could be used as a sitting out area is demonstrated by the application for the certificate and by the appeal before me. Thus, the test of the condition being fairly and reasonably related is fully met. 14. Thirdly, in terms of whether the condition is Wednesbury unreasonable, section 72 of the Town and Country Planning Act 1970 (section 72A) gives wide powers to decision makers in respect of planning conditions. More particularly section 72A says that condition may be imposed for regulating any use of any land under the control of an applicant so far as it is expedient for the purposes of, or in connection in development authorised by the permission. The certificate confirms that it was lawful to use the roof top for sitting out as of the 3rd February 2012 and I agree that this would be a defence to any enforcement action against that use, so long as there has been no intervening material change of use. But that does not mean that this lawful use cannot be restricted or varied by condition imposed on a development directly relating to this use. 15. In the case you brought to my attention it was held that there is no greater degree of protection given to uses which have been declared lawful by certificate, on the one hand, as opposed to uses which are lawful in any event on the other. It seems to me that the present appeal is very similar to that case where an appeal was dismissed against a condition seeking to prevent the use of a flat roof over an extension to a dwelling as a balcony, sitting out area or other amenity area. The judgment says the extension had been confirmed as lawful following the issue of certificate. 16. In these circumstances the condition the subject of the appeal before me appears to be lawful. For this reason and in light of my conclusions above on the other two tests of Newbury the decision to impose it was not Wednesbury unreasonable."

Then at paragraph 17 she said this:

"I consider that in the absence of condition 4 planning permission ought not to have been granted to the access hatch which would facilitate the use of the roof as a sitting out area. This is because I found in paragraph 10 above that potential for overlooking would be unacceptable. The condition is therefore necessary."

[14]At paragraph 20 she accordingly concluded that the development without condition 4 would be unacceptable and the living conditions of the adjacent occupiers would be seriously harmed. She considered that removal of the condition would conflict with the aims of the relevant local policies and she therefore dismissed the appeal. By that decision she upheld the grant of the planning permission subject to condition 4.

[15]I turn next to the law. Planning permission is required for the carrying out of any development upon land - see section 57 of the Town and Country Planning Act 1990. "Development" is defined in section 55(1) as meaning the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings.

[16]Section 70 provides for the grant of planning permission. Section 70(1) says as follows:

"(1)Where an application is made to a local planning authority for planning permission— (a)subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or (b)they may refuse planning permission."

Further provision is made in relation to conditions by section 72. The law relating to conditions is well established and is conveniently summarised in the House of Lords decision in Newbury District Council v Secretary of State for the Environment

[1981] AC 578

. For present purposes I need only refer to the judgment of Lord Lane at page 627 where he said for a condition to be valid and within the powers conferred by the Act it must: (i) be imposed for a planning purpose; (ii) it must fairly and reasonably relate to the development for which permission is being given and. (iii) it must be reasonable, that is to say a condition which is a reasonable local authority properly advised might impose. In this context "reasonable" means a condition that is not so unreasonable that no reasonable planning authority would have imposed it. Further guidance on conditions is contained in Circular 11.95 entitled "Use of conditions". I have had regard to that guidance.

[17]I return to the statutory framework. I deal next with enforcement. Section 172 provides for the local planning authority to issue a notice called "an enforcement notice" where it appears to them that there has been a breach of planning control and that it is expedient to issue the notice. A breach of planning control is defined is section 171A and it has two meanings(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted. There is provision for appeals under section 172(4). The grounds are set out and one of the grounds is that the matters do not constitute a breach of planning control. Finally, there is provision by which an individual can seek to ascertain that an existing use is lawful or that a proposed use is lawful. "Proposed use" is dealt with by section 192 which is in the following terms:

"(1)If any person wishes to ascertain whether— (a) any proposed use of buildings or other land; or (b) any operations proposed to be carried out in, on, over or under land, would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question. (2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application. (3) A certificate under this section shall— (a) specify the land to which it relates; (b) describe the use or operations in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class); (c) give the reasons for determining the use or operations to be lawful; and (d) specify the date of the application for the certificate. (4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness."

[18]Against that background there are four grounds of challenge: 1. The inspector acted irrationality in upholding a condition which is unenforceable. 2. The inspector erred in law in placing reliance on the authority of R (on the application of) Lambeth London Borough Council v Secretary of State for Communities and Local Government

[2007] EWHC 2976 (Admin)

and/or acted irrationality in doing so. 3. The inspector erred in law or acted irrationally in upholding an unnecessary condition; and 4. The inspector has acted illegally in that she failed to perform a scrupulous weighting of the balance of the advantage in imposing the condition in material considerations upon her analysis.

[19]This was further elaborated in argument. Mr Sheppard, on behalf of Mr Nisbet, emphasised that there had been no material change of circumstances because the use of the roof space for amenity purposes does not differ before and after the grant of planning permission. He pointed out that the roof hatch was physically present when the certificate of lawful use was granted although, as he accepted, it was there unlawfully in that it constituted a breach of planning control as planning permission had not been granted.

[20]Further Mr Sheppard submitted that the inspector had failed to analyse whether there had in fact been any material change and had disregarded Mr Nisbet's existing rights to use the roof space for amenity purposes.

[21]I deal with grounds 1 and 2 together. The claimant's essential submission is this. He submits that the use of the flat roof for amenity purposes is a lawful use. Indeed, the claimant has a certificate stating that the use of the flat roof for amenity space would be lawful. He submits that the imposition of the condition therefore unlawfully and impermissibly restricts an existing use. Further, says the claimant, section 192(4) provides that the lawfulness of the use is to be conclusively presumed. Consequently, he says if enforcement action were taken in relation to use of the flat space as amenity space the claimant would have a defence. He says he would be able to appeal against the notice on the ground that there had been no breach of planning control because the use was lawful. He further contends that the facts in the Lambeth case are materially different from the facts in this case.

[22]In my judgment the correct position is this. First, the claimant is seeking planning permission for operational development. That is the roof access hatch. A condition can be attached to the grant of planning permission for that operational development in order to regulate the activities that will result from the carrying out of that operational development. Such conditions may in appropriate circumstances include a condition restricting an existing lawful use. If such a condition were lawfully imposed and if it were not complied with, then enforcement action could be taken in respect of the breach of planning control resulting from the failure to comply with the condition.

[23]Given that there is an existing use of the flat roof space for amenity purposes, there has to be a need in planning terms to justify the imposition of the condition. Here the inspector considered that issue and decided that there was a need in planning terms to impose such a condition. She considered that the combination of the operational development comprising the roof access hatch, together with the prospect of the use of the flat for amenity purposes would result in new and undesirable effects on the occupiers of the adjacent properties. She considered that that needed to be addressed and could be addressed by the imposition of condition 4. In my judgment, that was a lawful approach on the part of the inspector.

[24]Secondly, in my judgment section 192(4) does not have the effect for which Mr Sheppard, for the claimant, contends. As I have said, section 192(4) provides that the lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change before the use is instituted or the operations are begun. That must mean lawfully instituted. Here, before the use could be lawfully instituted, the claimant needed planning permission for the operational works comprising the roof access hatch. Without the roof access hatch there would in practical terms be no lawful means by which the claimant could have obtained access from 37 to the flat roof to use it for amenity purposes. Consequently, there was a material change before use as an amenity space was instituted and so the certificate could not be relied upon.

[25]As Mr Wald, for the defendant, puts it in his skeleton argument, the claimant is seeking to derive the benefit of use for amenity purposes in connection with a changed set of circumstances, namely the application for planning permission for a roof hatch and other matters. In those circumstances, as Mr Wald submits correctly, the certificate is not conclusive as to lawfulness of the use that it proposed in those circumstances. For that reason there is nothing in section 192(4) which prevents the council from deciding when it grants permission to the operational development in terms of the roof access hatch to attach a condition that deals with the use that may be made of the flat roof in the circumstances that arise when there is a roof access hatch. More fundamentally, as I have indicated, if there is a lawful use whether or not the use is confirmed by the existence of a certificate, conditions may be imposed restricting that use if there is a need in planning terms.

[26]On the facts of this case there is no evidence to suggest that the claimant had ever made use of the flat roof space by means of a ladder or other method. There is nothing to suggest that the use referred to in the certificate had therefore been instituted and there had been material changes in circumstances before the use was lawfully instituted by the grant of planning permission for the roof access. In the circumstances, therefore, section 192(4) does not apply in the way that the claimant contends because there has been a material change, the grant of planning permission for the operational development, before the use was instituted.

[27]There was discussion as to whether or not a different result would occur if there was evidence that the claimant had made some use of the roof space, before getting the planning permission. That is if the claimant had actually used the roof space before the grant of planning permission by means of a ladder, the question was had the use therefore been instituted and was the certificate now conclusive? In my judgment, even if that were the position the result of this case would not be different. First, as I have said, whether the certificate was there or not, the use was a lawful use. It is open to the authority to impose a condition restricting a lawful use if there is a planning need to do so. Secondly, and separately the certificate in my judgment has to be read as a whole and against the purpose of section 192. The purpose of section 192 is to enable an individual to know if certain proposed uses would be lawful, so that he can carry on that use without the risk of there being a breach of planning control and consequential enforcement action. This certificate made it clear that it was granted on the basis that it did not include the unauthorised roof works. It is clear that there would have had to be an application for planning permission for the roof works if there were to be no breach of planning control. There is nothing in the certificate to suggest that if planning permission were applied for and granted, that conditions could not be attached in order to regulate the consequences arising from a combination of the existing use for amenity purposes with what would then be a lawful and ready means of access. In my judgment, properly read, the certificate was not intended to restrict the ability of the local planning authority to impose a condition on the use which they considered necessary in planning terms.

[28]Thirdly, in my judgment, these conclusions accord with the decision in the Lambeth case. In that case a house in London had been extended and a roof extension had been constructed. That operational development, the construction of the extension was lawful and was permitted development under the relevant general permitted development order. The lawfulness of the development was also confirmed by a certificate of lawful use or development. The applicant in the Lambeth case then applied to convert the property to a single dwelling. Planning permission was granted subject to conditions. One was that the flat roof area over the extension should not be used as a balcony sitting out area or other amenity area. The argument made in the Lambeth case was that there could be no condition attached restricting the the lawful use of the roof space as an amenity area. As His Honour

Judge Gilbart QC said in that case at paragraph 13 and 14:

"13. Thus, it is undoubtedly right to say that there is a policy against restrictions on permitted development rights of future changes of use which the use classes order would otherwise allow, but that is not what the case is here. What one is dealing with here is a condition seeking to restrict existing uses, or seeking the execution of works, because it was considered by the Local Planning Authority that the combination of the existing and the new would have undesirable effects. It was necessary for the Inspector to grapple with that question rather than assuming that it was contrary to policy." "14. There are tests in Circular 11/95 against which any condition must be measured, and they are the tests which are set out in paragraph 14 of that Circular (which are amplified in paragraphs 15 to 35) and they are that the condition should be necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise and reasonable in all other respects."

In my judgment, the position is essentially the same here. It is the combination of the fact that the planning permission for the operational development constituting the roof access hatch, together with the use of that flat for amenity purposes, which would result in new and what are considered to be undesirable affects that needs to be addressed. They can lawfully be addressed by the imposition of a condition such as condition 4 if the authority and the inspector considers them to be necessary in planning terms.

[29]The claimant submits the situation in this case is different from the Lambeth case. He says that the applicant in Lambeth had a certificate saying that operational development in the form of the construction of the roof extension was lawful. The condition, however, dealt with the use of that roof. Therefore he contends there was no conflict between the certificate and the condition. The certificate related to operational development, the condition related to a use. In the present case he submit there is a conflict. The certificate says that the use is lawfully but the condition seeks to restrict the use. In my judgment there is no material distinction between Lambeth in the way that I read the judgment and the facts of this case. In particular, the issue that arises is the combination of operational development for which planning permission is required and an existing use which is lawful, whether that use is confirmed by a certificate or in any event lawful. If the combination of that development, the operational development in the form of the roof access, together with the existing use creates new and undesirable effects a condition can be attached to planning permission for the operational development which deals with those effects by restricting the existing use. For those reasons grounds 1 and 2 fail.

[30]I turn then to ground 3. That ground contends in essence that a condition should not be imposed unless there is a need for it. The claimant contends there was no need as there had been no change in the planning circumstances pertaining to the flat roof. To a large extent that ground replicates the arguments that I have already considered under grounds 1 and 2.

[31]In my judgment, what is at issue here is whether the condition attached to the planning permission for the operational development comprising the roof access hatch was necessary in planning terms. It was considered necessary because the results of the operational development giving ready access to the roof space, coupled with the use that might otherwise be made of the roof space would lead to unacceptable effects for neighbours. That necessitated a condition restricting the use. Indeed, I bear in mind paragraph 17 of the inspector's decision, where she said that in the absence of condition 4 planning permission ought not to have been granted for the access hatch, which would facilitate the roof as a sitting out area because there would be an unacceptable potential for overlooking. In my judgment, the inspector considered, as she was entitled to, that such a condition was necessary for planning purposes.

[32]Ground 4 and some of the submissions this morning contended that the inspector had not carried out a proper analysis of the material changes that had occurred and had not scrupulously considered the balance of advantage to the respective parties and in particular had disregarded the claimant's rights. In my judgment, the inspector did carry out a scrupulous weighing of the different and competing interests in this case. She was well aware that Mr Nisbet had an existing use of the roof for amenity. She took that fully into account. She was well aware that she was considering a condition which would restrict the use that could be made of the flat roof. She did so having taken into account the interests of others, in particular the neighbours in the nearby properties. In my judgment, that was a lawful approach. It was consistent with the decision in Lambeth and this ground of challenge also fails.

[33]In my judgment, the inspector did analyse the situation carefully and meticulously in her consideration of the need for the condition. She was well aware that the claimant had a certificate of lawful use. What concerned her was the consequences of the combination of the existing use and what would, in practical terms, result if permission for the operational development was granted. She did not disregard the claimant's rights. She weighed those rights carefully against the interests of others and formed a judgment that condition 4 was necessary. That was a lawful decision.

[34]For all those reasons this claim is dismissed.