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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mohamed v Secretary of State for Communities and Local Government & Anor  EWHC 4045 (Admin) (05 December 2014)
Cite as:  EWHC 4045 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GERMIN MOHAMED
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
LONDON BOROUGH OF BRENT
(Transcript of the Handed Down Judgment of
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Andrew Byass (instructed by Treasury Solicitor) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing dates: 21st November 2014
Crown Copyright ©
MR JUSTICE GILBART :
"Schedule 1: Land or premises affected
650 North Circular Road Neasden London NW2 7QJ
Schedule 2: The Alleged Breach of Planning Control
Without planning permission, the erection of a dwelling in
the rear garden of the premises
Schedule 3: Reasons for issuing the Notice
It appears to the Council that the unauthorised development took place within the last 4 years
The dwelling, by virtue of its scale and size of floor area, is not incidental to the enjoyment of the dwelling house and is therefore out of keeping with the area……
The dwelling forms a separate residential unit of accommodation in the rear garden of the premises and results in a substandard form of accommodation, which is not incidental to the enjoyment of the dwelling house. It is therefore out of keeping with the area……..
The dwelling, by virtue of its excessive size, height and close proximity to the side and rear boundaries, appears as an obtrusive and overbearing feature, almost spanning the full width of the garden at a height in excess of 2.5 m. This is disproportionately large and is detrimental to the visual amenities of the neighbouring properties and the locality………..
What you are required to do to remedy the breach
of planning control- s 173(4)(A)
Demolish the dwelling in the rear garden of the premises, remove all items and debris arising from that demolition and remove all materials associated with the unauthorised development from the premises.
Schedule 5: Time for Compliance
3 months after this Notice takes effect
"(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
(b) that those matters have not occurred;
(c) that those matters (if they occurred) do not constitute a breach of planning control;
(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;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."
i) A site visit on 18th June 2012 revealed that the building contained a kitchen and bathroom, and a person in the building said that it was a self contained flat;
ii) Photographs showed new external brickwork and windows and doors;
iii) No response was received to a planning contravention notice;
iv) Comparison of aerial photographs showed that the building on site is larger than that existing up to at least 2010, by approaching 25% (36 sq metres as opposed to 29 sq metres). The former pitched roof has been replaced by a flat roof;
v) An access had been made to the rear alleyway, and a fence installed which blocks access to the main house;
vi) The effect of what had happened was that a garage had been replaced by a self contained dwelling;
vii) As the building exceeded 2.5 metres in height the works required planning permission.
" we did replace the pitched roof, which was very old and leaking. We replaced it with a flat brick roof, which was part of our refurbishment, the purpose of which was to restore the whole garage to good repair."
" Meaning of "development" and "new development".E+W
(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building…………operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
(1A)For the purposes of this Act "building operations" includes—
(a) demolition of buildings;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder.
(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—
(a) the carrying out for the maintenance, improvement or other alteration of any building of works which—
(i) affect only the interior of the building, or
(ii) do not materially affect the external appearance of the building,
and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground."
"(1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land."
" I understand that some of the original garage has been retained in the present building but the up-and-over metal door has been blocked up so the premises can no longer be used for garaging vehicles by the occupiers of the main house…..In addition it may well be that the building has only been occupied by other family members who live overseas. Nevertheless I consider that cumulatively the various facilities set out in the preceding paragraph provide the wherewithal for day to day independent domestic existence as set out in Gravesham. Accordingly I am satisfied that the development alleged in the notice had taken place as a matter of fact and the appeals on ground (b) fail."
i) has never grappled with the question of what operations were carried out (which of course affects whether they were unlawful) , and
ii) has not considered whether some steps short of complete demolition would suffice to remedy the breach of planning control.
i) the Inspector has dealt with the first issue by implication;
ii) as the Appellant conceded that there had been external alterations and the replacement of the pitched by a flat roof, it was common ground that building works had taken place which were unlawful if the GPDO exception applied;
iii) the Inspector was not required to search around for solutions to the problem of what to do with the building.
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."