CASEBOOK: Appeal cases - Housing: Conversion - Enforcement notice prevails despite new evidence

In refusing to issue a lawful development certificate (LDC) for use of an existing building in Kent as a dwellinghouse, an inspector has concluded that an extant enforcement notice upheld at appeal precludes the use from being lawful despite new evidence presented by the appellant.

The unauthorised change of use of the land and building to use as a single dwellinghouse had been the subject of an unsuccessful appeal in October 2002. Having regard to the provisions of section 191(2) of the Town and Country Planning Act 1990, the council maintained that an LDC could not be issued where it would contravene the requirements of a valid enforcement notice. It relied on R v Epping Forest District Council ex parte Martin Arnold Philcox (2000), where it was held that an enforcement notice would always prevail in respect of determining whether a use is lawful.

The appellant claimed that new evidence demonstrated that prior to the issuing of the enforcement notice in 2000, the use had become lawful under the four-year immunity rule. Section 191 of the 1990 act should be interpreted on the basis that an LDC application should succeed even under circumstances where a valid enforcement notice is in place, he argued. He claimed that this approach accorded with his entitlement to a fair hearing under article 6 of the European Convention on Human Rights and also cited article 8, claiming that denial of the LDC would deprive his family of a home.

In addressing these submissions, the inspector considered that section 191 did not envisage new evidence being brought forward when the statutory right of appeal under section 174 had been followed. Section 191(2)(b) was meant to bring finality to the enforcement process by prohibiting further claims of lawfulness once the avenues of appeal available under section 174 had been exhausted, he reasoned.

He noted that in the 2000 appeal, the appellant had been represented by a planning consultant and barrister who would have presented evidence as to the lawfulness of the use. In his view, the LDC application was a belated attempt to resurrect matters that had been fully considered by a previous inspector. The appellant's human rights had been debated at the previous hearing and consequently no violation of those rights would arise if the appeal were to be dismissed, he concluded.

The inspector held that the appellant had been unreasonable in pursuing the appeal, noting that he had been given ample opportunity to withdraw in the light of advice from both the council and the Planning Inspectorate.

He found that since it was clear as a matter of law that an LDC could not be issued because of the extant enforcement notice, the appeal was doomed to failure. This unreasonable behaviour had involved the council in unnecessary expense, he ruled.

DCS No: 53290304; Inspector: Martin Joyce; Inquiry.

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