London borough wins High Court challenge to decision by inspection on enforcement action over conversion of office basement

The London Borough of Islington has convinced the High Court to overturn a planning inspector’s ruling that it could not take enforcement action against an estate agent who had turned an office basement into a dwelling without planning permission.

Islington appealed under section 289 of the Town and Country Planning Act 1990 against the inspector’s decision to allow an appeal by Maxwell Estates against an enforcement notice concerning the change of use.

The inspector rejected the council's submission that Maxwell Estates had deliberately concealed the existence of the change of use of the basement, in particular, by not registering it as a separate unit for council tax purposes.

He took into account the fact that the basement was openly advertised as a residential flat on the internet and its existence was known to third parties.

Once the breach came to the council’s notice, Maxwell Estates applied for a certificate of lawfulness on the basis that the basement had been in residential use for more than four years and so was immune from planning enforcement.

The council rejected this as not having been continuous due to a seven months gap in 2013-14.

Islington argued that the inspector misunderstood and/or misapplied the law regarding immunity from enforcement action taken against a material change of use and as an alternative that his conclusion was contrary to the evidence, and so was irrational.

Giving judgment in London Borough of Islington v Secretary of State for Housing, Communities And Local Government & Anor [2019] EWHC 2691, Mrs Justice Lang accepted the council’s submission that the inspector ought to have applied authoritative guidance and concluded he had misdirected himself in law and misapplied the relevant law by not doing so.

She dismissed three other grounds advanced by Islington.

Mark Smulian

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