Róisín Finnegan is successful in Planning Enforcement Inquiry and obtains partial award of costs

The enforcement notice alleged a breach of planning control involving the unauthorised material change of use of the first, second, and third floors of a property into six self-contained flats, and the conversion of part of the ground floor and basement into a separate flat, including the installation of a window at ground floor level. The appeal was brought under sections 174(2)(b) and (d) of the Town and Country Planning Act 1990.

Ground (b)

Under Ground (b), the appellant argued that part of the ground floor and basement were used as a staff room for the barber shop at the front of the premises. The kitchen, lounge, shower, and toilet were said to be installed for the benefit of two barbers who worked there at their request. However, no supporting evidence was provided. The Council relied on Impey v SSE & Lake District SPB [1981] JPL 363, which established that a material change of use can occur even before occupation, if the premises are ready for imminent occupation, but they had not yet actually been used. The Inspector agreed, finding that based on the physical characteristics, it was more likely that the part of the ground floor and basement had been fitted out with the intention for residential use, where they are ready for imminent occupation but they had not yet actually been used. The Ground (b) appeal was therefore dismissed.

Ground (d)

Under Ground (d), the appellant needed to prove that the six flats had been in continuous residential use for the required four year period. Although various documents were submitted, including tenancy agreements, statutory declarations, energy certificates, and maintenance receipts, the evidence was inconsistent and lacked clarity. The appellant’s evidence at the Inquiry was contradictory, and the absence of tenant witnesses at the Inquiry tempered the weight that could be afforded to their statutory declarations. The Inspector emphasised that tenancy agreements alone do not prove occupation, and it was problematic that where agreements were said to have “rolled over.”, there was no evidence of these arrangements.

The appeal under Ground (d) therefore failed due to insufficiently precise and unambiguous evidence for each flat. Consequently, there was no need for the Inspector to consider the Council’s submissions in respect of concealment.

Costs

A partial award of costs was granted to the Council due to the appellant’s unreasonable behaviour, which included missed deadlines and lack of cooperation with the Council.

The Inspector rejected the appellant’s attempt to distance herself from her agent’s failings, finding that it was incumbent upon her to ensure that he was acting in her best interests and was available to represent her effectively. The Inspector considered that should the conduct of her agent have fallen short of her expectations and resulted in unreasonable behaviour, that is a private matter between her and the agent to resolve.

This therefore serves as a salutary reminder to appellants that they bear the ultimate responsibility for their appeal. If the conduct of an agent results in an award of costs being made against an appellant, it will be a private matter for an appellant to resolve with their agent. It will not act as a bar to an award of costs being made.

Appeal and costs decision can be found here.

Róisín Finnegan was instructed by the London Borough of Hackney.