ZZZ Incorporated, R (on the application of) v Secretary of State for Transport, Local Government and the Regions

On an appeal under Town and Country Planning Act 1990, the appellant bears the burden of establishing a statutory ground of challenge to an enforcement notice. The planning authority need only have genuinely considered, on reasonable grounds, that a breach of planning control had occurred and that enforcement was expedient. A requirement in an enforcement notice need not prescribe every method of compliance. It is sufficient that the required objective is clear and objectively ascertainable, while leaving the recipient reasonable flexibility in how to achieve it.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an enforcement decision made by the Secretary of State’s planning inspector. The enforcement notice alleged an unauthorised change from a house in multiple occupation to one self-contained flat and eight self-contained studio flats. It required the residential property to be rearranged to provide non-self-contained bedsitting accommodation with shared facilities.

The claimant argued that the inspector had wrongly placed the burden of proof on it concerning the previous lawful use, and that the required steps were either unlawful because the previous use had not been established as an HMO or too imprecise to be effective.

1. Appeal dismissed. The inspector was entitled to uphold the enforcement notice and the requirement to rearrange the property as non-self-contained bedsitting accommodation with shared facilities.
2. Under the statutory scheme, the planning authority’s power to issue an enforcement notice depends on it appearing to the authority that a breach of planning control has occurred and that enforcement is expedient. The authority is not required to prove those matters before issuing the notice. On an appeal under section 174, the appellant must establish one or more statutory grounds of challenge.
3. There was ample material supporting the conclusion that the previous lawful use was an HMO. The inspector was entitled to find that the property had been used as an HMO for the necessary period, or at least that the authority’s conclusion had not been rebutted. The evidence included the property’s layout, earlier descriptions of its use and statements made by the claimant’s builder.
4. The requirement in paragraph 5(2) was sufficiently precise. Its purpose was clear because there was an objectively ascertainable distinction between self-contained flats and accommodation with shared facilities. The notice was not invalid merely because it left the claimant flexibility to select the most convenient and economical means of compliance.
5. The enforcement policy favouring retention of low-rent, non-self-contained accommodation was consistent with the local planning policy and had not been challenged.

The agreed costs order was made against the claimant, in the sum of £5,093.75.

• Secretary of State for Transport, Local Government and the Regions: Following an inquiry and site visit, the planning inspector dismissed the claimant’s appeal against the enforcement notice on 8 November 2002.
• High Court (Administrative Court): The appeal under section 289 of the Town and Country Planning Act 1990 was dismissed.