Council defeats High Court challenge to enforcement notice

Luton Borough Council has defeated a developer’s challenge to a planning enforcement notice in the High Court.

Devonhurst Investments was accused of having changed the use of a site from employment to residential by demolishing rather than converting an office building.

This now comprised 109 self-contained units in three two-storey structures.

The company said the council imposed the notice without regard to the Public Sector Equality Duty (PSED) arising under s149 of the Equality Act 2010 or to the best interests of children residing on the site and/or the article 8 ECHR rights of occupants.

Mrs Justice Steyn heard the site was formerly an office block within a functioning industrial estate.

In April 2016, Devonhurst applied for prior approval - change of use from office(s) (B1a) to (C3) residential. (Class O) 130 dwellings” under Schedule 2 Part 3 Class O and paragraph W of the Town and Country Planning (General Permitted Development) (England) Order 2015.

Luton decided prior approval was not required. It said development under Class O was permitted but must be completed within three years and “shall be carried out in accordance with the details provided in the application, and does not imply any consent is granted for any external works outside of the building, including infilling the undercroft parking area, for which a separate consent may be required”.

Devonhurst demolished the former Shire House office block and rebuilt it with an extension, Luton several times advised the firm to apply for a certificate of lawful use but it did not.

By the time the council served the enforcement notice the new block was occupied in some cases by people who had previously been homeless and some of whom had children.

Steyn J said in Devonhurst Investments Ltd, R (On the Application Of) v Luton Borough Council [2023] EWHC 978 (Admin) Luton contended that in the absence of a statutory duty of enquiry under the PSED, it was for the council to decide the parameters of any information gathering exercise, subject to the test of rationality.

Devonhurst though said it was for the court to determine whether the duty of enquiry has been complied with and the irrationality threshold was inapplicable.

It said enforcement against residential use would require the occupants to leave their homes and many possessed protected characteristics or were vulnerable people placed there by other authorities.

Luton argued it was entitled to assume that other local authorities complied with any duties owed and there was no suggestion that there were any particularly acute issues for occupiers with protected characteristics that the council did not have in contemplation.

Steyn J said: “It is clear from the officer's report…that the council had a proper appreciation of the desirability of promoting the equality objectives.

“The council was conscious that it did not know the personal circumstances of the individual occupiers. In my judgment, the nature and context of the proposed decision was such that the council was not required to identify, on an individual basis, the protected characteristics of the occupiers or to ascertain their individual circumstances.”

She dismissed this ground and the Article 8 one, noting: “The claimant makes no allegation that its article 8 rights have been breached.

“The occupiers whose article 8 rights are said to have been breached can speak for themselves, and in any event the claimant landlord does not represent them. The claimant is, of course, directly affected by the notice. But it is not a victim within the meaning of s7 of the Human Rights Act and so it cannot rely in these proceedings on any alleged breach of article 8.”

Turning to the ground concerning the best interests of children, Steyn J said: “The objection to the terms in which the council described the regard it had had to the welfare of children is a semantic one which lacks substance.”

She added: “In my judgment, in the context of this determination regarding the exercise of its enforcement powers, s11 of the Children Act 2004 did not impose a duty on the council to investigate the individual needs of the children occupying Shire House.”

Steyn J also dismissed a ground that the council did not properly address the expediency test in s172(1)(b) of the Town and Country Planning Act.

She said: “I agree with the council that it is unnecessary, and indeed would be inappropriate, to address the contention raised by the claimant for the first time during the course of oral submissions that the council's reasons were inadequate. No such challenged is pleaded and the claimant has no permission to pursue it.”

Mark Smulian