Window enforcement decision found legally flawed

An inspector's decision to quash an enforcement notice directed against a PVC window in a north London terrace was legally flawed, the High Court has ruled.

The window had been installed at a ground-floor flat in a conservation area. Following an appeal against the notice, the inspector considered whether installation of the window involved "development" in the context of section 55(2)(a)(ii) of the Town and Country Planning Act 1990, in that it materially affected the building’s external appearance.

Applying the principles established in Church Commissioners for England v Secretary of State for the Environment (1996), the inspector (DCS Number 400-024-311) held that the term "building" should apply to the whole terrace of which the appeal site formed part. Given the predominance of PVC windows in the terrace, he decided that, taken as a whole, the installation of one further window had not materially affected external appearance and so did not constitute development.

Upholding the council’s challenge to this decision, Mrs Justice Lieven held that the inspector had misapplied the Church Commissioners judgment, which related to the definition of a planning unit involving a single unit in a shopping centre. In her view, insufficient explanation had been provided as to why the entire terrace comprised the "building", given that in common parlance each house in a terrace would be considered a separate building. The inspector’s finding on this point was not necessarily wrong but clear reasons should have been set out, she held.

Similarly, the judge disagreed with the inspector’s reliance on Burroughs Day v Bristol City Council [1996] and the inference that any impact should be assessed on the building as a whole. Section 336 of the act makes clear that a "building" includes "part of a building", she noted. On that basis, it was a matter for the decision-maker to consider the impact on part of the building rather than the whole when applying section 55(2)(a)(ii). In her opinion, the contrary view expressed in Burroughs Day was wrong.

The judge ruled that the inspector had compounded the error by considering a lack of consistent action by the council against PVC window installations in the conservation area. This suggested that he had assessed the impact on part of the conservation area rather than as strictly required under section 55(2)(a)(ii), she concluded. The decision was quashed.

London Borough of Haringey v Secretary of State for Housing, Communities and Local Government

Date: 7 November 2019

Ref: [2019] EWHC 3000 (Admin)

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