London council wins Court of Appeal battle over planning enforcement notice

A London council has won a challenge in the Court of Appeal to an inspector’s decision to quash a planning enforcement notice.

The appeal in Westminster City Council v Secretary of State for Communities And Local Government & Anor [2015] EWCA Civ 482 related to a notice issued by Westminster in respect of premises at 100-102 Westbourne Terrace.

The breach alleged was that: “Within the last 10 years and without the benefit of planning permission, the material change of use of the property, from a hotel (class C1) to a mixed use hotel and hostel (sui generis)."

The lessee of the premises, Equity Point Holdings, through its chief executive, Mr Oriol Badia, appealed under section 174 of the Town and Country Planning Act 1990 against the notice.

A planning inspector – by a decision dated 13 January 2013 –allowed the appeal under ground (b), namely that the matters alleged in the notice had not occurred, and under ground (c), namely that those matters (if they occurred) did not constitute a breach of planning control.

Westminster appealed to the High Court under section 289 of the 1990 Act against the inspector's decision.

However, the council's appeal was dismissed by Mr Justice Supperstone, who concluded that the inspector had merely applied her planning judgment. The local authority appealed again.

The Court of Appeal unanimously allowed Westminster’s appeal. Giving the judgment of the court, Lord Justice Richards said: “I have no doubt that the question the inspector asked herself was whether part of the premises was in exclusive use as a hostel and part was in exclusive use as a hotel….

“On the face of it, it was an error of law to address the matter by reference to whether part of the premises was in exclusive use as a hotel and part in exclusive use as a hostel. As I have said, it is accepted on behalf of the Secretary of State that a mixed use can subsist where the different elements are not associated with particular parts of the premises.”

Lord Justice Richards also agreed that the inspector had erred in law by failing to have regard to a relevant consideration – off site impacts of the use such as noise and disturbance on residential amenities – when considering whether the character of the use had materially changed.

“If that were wrong, then [Westminster’s QC] would in my view necessarily succeed on her alternative submission that the inspector's failure to explain how she dealt with the point was a serious inadequacy of reasoning,” the judge said.

Saira Kabir Sheikh QC and Isabella Tafur of Francis Taylor Building represented Westminster at the planning inquiry, High Court and Court of Appeal. Cain Ormondroyd represented the Secretary of State in the High Court and Court of Appeal.