This article first appeared in the February 2014 NAPE newsletter.
On the 11th February 2014 Mrs Justice Lang handed down her judgment in the judicial review application brought by a Mr Barker of Brighton & Hove City Council’s decision not to proceed with enforcement action in respect of a newly-built house.
The Judge decided to grant the judicial review application, quashed the Council’s decision as unlawful and ordered the Defendant to re-consider the outstanding issues in respect of the case in question.
Planning permission was originally granted in 2006 for residential development consisting of a residential conversion into two town-houses and a new-build single dwellinghouse. In 2008, when the development was substantially complete, it was discovered that the single dwellinghouse was not built in accordance with the planning permission. Pertinently, it was built too high.
The Council then prepared an Enforcement Notice in September 2009 requiring demolition because it felt there was material harm by way of overlooking, over- shadowing and loss of privacy on neighbouring properties. It appears this notice was not issued.
The Council also encouraged the making of a retrospective application. The developer then applied retrospectively, but this application was refused. The developer appealed but the appeal was refused.
In the Inspector’s costs decision, she criticised the Council, saying that encouraging a retrospective planning application rather than taking enforcement action, resulted in an outcome that was not satisfactory for either party.
Seven months later the Council then decided not to take further enforcement action on the basis of expediency, leaving the neighbours without redress. Of this, the Judge said: “I have concluded that the Defendant's decision was perverse, in all the circumstances, and that the planning officers concerned failed to have proper regard to relevant factors set out in its earlier assessments”.
Too often planning enforcement officers make decisions NOT to take enforcement action very easily (and without delegated authority). In a number of these cases, all considerations are not taken into account, leaving Councils open to judicial review or Ombudsman complaints. This case is a sobering reminder to local authorities to ensure that all decisions, including decisions not to take enforcement action, should be considered very carefully.