Esther Gurvits & Anor v Secretary of State for Levelling Up, Housing and Communities & Anor

Permission to challenge an enforcement appeal decision under section 289(6) of the Town and Country Planning Act 1990 should be granted where a proposed ground is properly arguable. An inspector must address material evidence and give adequate reasons for material conclusions. The scope of permitted development rights may be irrelevant where the enforcement notice concerns a material change of use rather than operational development. An enforcement notice should not be amended so that it prevents a lawful use of separated buildings which the amendment was intended to permit. A planning judgment supported by evidence will not be irrational merely because other evidence points the other way.

The appellants sought permission under section 289(6) of the Town and Country Planning Act 1990 to challenge an inspector’s decision dismissing their appeals under section 174 against an enforcement notice issued by the London Borough of Barnet.

The notice alleged a material change of use of an outbuilding serving three residential properties to use as a commercial office and associated storage. The inspector upheld the notice, amended it by requiring the internal links between the three component buildings to be removed, and retained requirements to remove kitchen facilities and toilets.

The proposed challenge concerned failure to engage with evidence, reliance on permitted development rights, the finding of noise and disturbance, and the lawfulness and rationality of the amended requirements.

1. Permission. Permission to appeal was granted in respect of Grounds 1, 2 and 4 under section 289(6) of the Town and Country Planning Act 1990. Ground 3 was not arguable and permission was refused on that ground.
2. Ground 1. The inspector’s reasoning arguably failed to engage with the first appellant’s unchallenged evidence about the use of the separately constructed parts of the outbuilding. The decision letter appeared to treat the parts as having been used solely in connection with their respective dwellings before 2017, although the evidence was capable of showing wider family and office use. The resulting conclusion that joining the parts created a material change of use was therefore properly arguable.
3. Ground 2. Whether the buildings had been erected under Class E, Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 was arguably irrelevant to an enforcement notice concerned with a material change of use. The inspector’s reliance on that matter might therefore constitute an error of law, although the point was not considered strong.
4. Ground 3. The finding of harm through noise, disturbance and parking stress was a reasonable exercise of planning judgment on the evidence, including evidence of increased traffic and activity. The inspector was not required to catalogue all evidence supporting and opposing that conclusion or explain the balancing exercise in detail.
5. Ground 4. Adding a requirement to separate the three buildings while retaining requirements to remove kitchen and toilet facilities arguably created a prohibition, or potential prohibition, on uses otherwise lawful without planning permission. That was capable of offending the principle in Mansi v Elstree RDC (1965) 16 P&CR 153.

• High Court (Administrative Court): The court considered an application for permission under section 289(6) of the Town and Country Planning Act 1990 to challenge the inspector’s decision dated 30 January 2023. Permission was granted on Grounds 1, 2 and 4 and refused on Ground 3.