High Court orders appeal over enforcement notice to be redetermined

Jonathan Moffett KC, sitting as a deputy High Court judge, found for the appellant in her case against the Secretary of State for Housing, Communities and Local Government and Lambeth Council.

The appellant appealed under s 289 of the Town and Country Planning Act 1990 after an inspector upheld an enforcement notice which required the extension’s removal.

She became the flat’s owner as part of a divorce settlement with her husband, who had built it.

Two grounds of appeal were allowed. The first was that the inspector failed to give adequate reasons for the decision, and the second that the inspector erred in law in concluding that an assured shorthold tenancy for the flat had not been rolled over.

The appellant’s ex-husband had converted the roof space to a flat without planning permission and in September 2019 unsuccessfully applied to Lambeth for retrospective planning permission.

Lambeth refused this and two later applications, and in July 2023 the appellant applied for a Certificate of Lawful Existing Use or Development.

This was on the basis that the works had been completed more than four years previously.

Lambeth also rejected this and said it was not satisfied that dormer extensions had been substantially complete for four years, or that the flat had been in continuous use as a separate dwelling for that time.

The council then issued an enforcement notice which required the removal of the flat and its contents and reinstatement of the original roof layout.

The appellant said the flat had been occupied continuously for more than four years but Lambeth disputed this by reference to its electoral and council tax records.

She submitted there had been continuous residential use by reference to periods to which each of the assured shorthand tenancy agreements related.

Mr Moffett said: “I should be very slow to conclude that the decision gives rise to a substantial doubt as to whether the inspector fell into error in his application of the test which he had identified to the evidence before him.

“Nevertheless, in my judgement the decision does not adequately explain the inspector's conclusion on a principal important controversial issue, in that it does not disclose how the inspector resolved a key issue of fact, and it gives rise to a substantial doubt that the inspector erred in his approach.”

He added: “I consider that, in the particular circumstances of this case, it was incumbent on the inspector to identify at least one of those [tenancy] periods as one in which he was not satisfied that [the appellant] had proved her case, and to explain why.”

Mr Moffett said the inspector had considered evidence about the flat’s occupation but “…at no point in those paragraphs does the inspector express any conclusion of his own as to whether the evidence proved that the flat had been in residential use during any of the periods which he discussed, or why”.

He explained the inspector had been entitled to consider the extent to which the appellant’s evidence was precise and unambiguous; “but, having done so, he needed to go on to consider whether it demonstrated on the balance of probabilities that the flat had been used for residential purposes throughout the relevant four year period”.

“In my judgement, there is a substantial doubt as to whether the inspector carried out the second stage of the analysis…and as a result there is a substantial doubt as to whether he adopted a correct or an incorrect approach.”

Mr Moffett said both grounds succeeded and that the Secretary of State was to pay the appellant’s assessed costs of £35,000.

Mark Smulian