Littman, R (on the application of) v London Borough of Barnet

A local planning authority’s discretion whether to issue an enforcement notice is wide, but it must be exercised on a legally correct basis. Where purported permitted development falls outside the General Permitted Development Order because it extends beyond the plane of an existing roof slope fronting a highway, the whole development is development carried out in breach of planning control. The authority must then assess the expediency of enforcement by considering the development as a whole, its conformity with planning policy, its effect on local amenities and other material considerations. A decision materially influenced by the mistaken view that the development is permitted development is unlawful and must be reconsidered.

The claimant sought judicial review of the London Borough of Barnet’s decision not to take enforcement action concerning extensions and roof works at a neighbouring dwelling. Planning permission had been granted for substantial extensions, but additional roof development was carried out purportedly under the General Permitted Development Order. The claimant argued that the roof works were outside the permitted development rights because part of the dwelling extended beyond the plane of an existing roof slope fronting an alleyway which was a highway.

The central issues were whether the roof works were permitted development and whether the authority’s decision not to enforce had been reached by reference to the correct legal and planning considerations.

1. The claim succeeded. The authority’s decision of 20 July 2005 was legally defective and the question whether enforcement proceedings should be taken had to be reconsidered. A formal quashing order or declaration was unnecessary.
2. Under section 172 of the Town and Country Planning Act 1990, the authority must first consider whether it appears that there has been a breach of planning control. It must then decide whether issuing an enforcement notice is expedient, having regard to the development plan and other material considerations. That decision involves a wide discretion, but it is reviewable for error of law.
3. The alleyway adjoining the property was a highway. The roof works extended beyond the plane of an existing roof slope fronting that highway and therefore failed the condition in class B1(b) of Schedule 2 to the General Permitted Development Order. The roof works were consequently not permitted development. The fact that only part of the works offended the limitation meant that the development as a whole was development carried out in breach of planning control.
4. The authority had materially proceeded on the mistaken basis that the roof works were permitted development and could not be enforced against. It had therefore failed to consider the overall form of the development, including the replacement of the hip roof, the rectangular roof structure and the additional windows, and whether the completed development accorded with planning policy or would have received planning permission.
5. The judgment in R (Watts) v Secretary of State for the Environment, Transport and the Regions [2002] JPL 1473 supported the conclusion that permitted development rights could be exercised before implementation of a separate planning permission, absent an effective restriction. That did not remove the authority’s duty to assess the resulting development correctly once the works were outside the permitted development regime.
6. On reconsideration, the authority could take account of the cost of removal, the absence of a deliberate breach and the enforcement officer’s planning judgment. Those considerations did not cure the original error. The authority was required to give full reasons for its fresh decision. The claimant was awarded costs, subject to detailed assessment, with £5,000 payable on account within 21 days.