The council alleged a material change of use of the appellant’s dwelling through the creation of a second self-contained unit of accommodation. The appellant contended that the annexe had been built in 2007 and occupied by various tenants on a rental basis. As it had existed as a self-contained dwelling for at least four consecutive years, she claimed that it was immune from enforcement action under section 174(2)(d) of the Town and Country Planning Act 1990.
The appellant initially failed to provide any evidence of the tenancies. However, at the inquiry, the inspector allowed her to adduce tenancy agreements dating back to 2007. The appellant also referred to two extra pieces of evidence: a collection of bank statements purportedly showing rent receipts over the four-year period and a letter from an alleged tenant confirming his residency.
The inspector acknowledged the extra material to which the appellant referred but dismissed the appeal on the basis that she had failed to demonstrate that the annexe had been continuously occupied over the relevant period and was therefore immune from enforcement action (DCS Number 200-006-821). The appellant claimed that this decision was unjust and that a different conclusion would have been reached had the inspector given her time to produce additional evidence. Mrs Justice Lang, giving permission earlier this year for the case to be heard in full, agreed that this additional information was not immaterial to the case.
Judge Ockleton stated that the issue was whether the inspector’s decision not to allow the appellant to produce the additional information at the inquiry had led him into error and then whether such information would have materially altered his conclusions. The judge noted that the inspector had identified inconsistencies in the appellant’s evidence during the inquiry and the appellant herself had corrected a number of factual matters. For example, a letter from the appellant’s husband suggested that there had not been a tenancy since before 2014 and there was no indication that rents received had been subject to income tax.
In the judge’s view, the inspector had acted fairly in allowing the appellant to produce additional information despite this being in breach of the inquiry procedure rules. In respect of the bank statements and the letter from a former tenant, he noted, the appellant had only offered to make them available for examination. In dismissing the challenge, he ruled that nothing in the extra material would have affected the outcome.
On the appellant’s own evidence, the judge remarked, there had been times when the annexe had not been occupied as a separate dwelling and on this basis the four-year period required to obtain immunity would have started again at those points. No explanation as to why the additional material could not have been submitted earlier in the proceedings had been provided, he found. In his opinion, the decision to uphold the notice had been sound.
Benson v Secretary of State for Communities and Local Government and Hertsmere Borough Council
Date: 18 September 2018
Ref:  EWHC 2354 (Admin)