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

On an appeal under section 289 of the Town and Country Planning Act 1990, the High Court will intervene only for an error of law, applying grounds substantially equivalent to judicial review. A material change of use is assessed by asking whether there has been a material change and, if so, whether the new use is incidental to the enjoyment of the dwellinghouse. Intensification and the creation of a separate planning unit may demonstrate a change in the character of use. An enforcement notice may require removal of works integral to an unauthorised use, but it cannot remove legally permitted use or alteration rights. Such rights need not be expressly preserved where their statutory parameters are certain.

The appellants appealed under section 289 of the Town and Country Planning Act 1990 against an Inspector’s dismissal of their appeals under section 174 concerning an enforcement notice issued by the London Borough of Barnet. The notice alleged an unauthorised material change of use of linked outbuildings behind three dwellings to an office and associated storage. The Inspector upheld the notice, subject to variations, and refused deemed planning permission.

The appeal challenged the Inspector’s findings about the former use of the outbuildings, his consideration of permitted development rights, and his retention of requirements permanently removing kitchen facilities and toilets despite adding a requirement to separate the buildings. The central issues were whether the Inspector erred in law, acted irrationally, or failed to give adequate reasons.

1. Outcome. The appeal was dismissed. Each ground of challenge failed.
2. Ground 1. The Inspector was entitled to rely on the First Appellant’s fuller oral evidence, as recorded in the parties’ closing submissions, rather than treating her written proof as the entirety of her evidence. That evidence supported the finding that the three buildings had initially been used separately for purposes incidental to the enjoyment of the associated dwellinghouses. The Inspector did not find that each building had been used solely for the particular dwelling behind which it stood. The material point was the incidental character of the former use, contrasted with the later use of the amalgamated structure as a distinct office and storage unit.
3. Ground 2. The Inspector did not decide whether the building works themselves were lawful. He considered whether use of the conjoined building remained within the scope of the Class E permitted development right under the Town and Country Planning (General Permitted Development) (England) Order 2015. That was capable of being relevant to whether the use remained incidental to a dwellinghouse. In any event, the Inspector’s findings on the changed character of the use independently supported dismissal of the ground (c) appeal.
4. Ground 4. The requirements to remove kitchen facilities and toilets were not excessive. They concerned works integral to, and part and parcel of, the unauthorised office use. Although requiring permanent removal was arguably unnecessary, it did not infringe the Mansi principle. The enforcement notice had to be construed as preserving statutory rights under sections 55(2)(a) and 55(2)(d) of the Act. After separation, the three lawful outbuildings could still be used for purposes incidental to the respective dwellings and altered internally within the statutory limits.
5. The Inspector’s decision was intelligible and adequately reasoned.

• Inspector appointed by the Secretary of State. On 30 January 2023, the Inspector dismissed the appellants’ appeals against the enforcement notice, upheld it subject to minor variations and an additional requirement, and refused deemed planning permission.
• High Court (Administrative Court). Permission to appeal was granted on three grounds. The appeal was dismissed.