All I wanted was closure

A recent case looked at what might constitute waiver of the requirements of an enforcement notice. The decision is a reminder that language is important in post-notice negotiations with errant developers, writes Roderick Morton.

The case of Pathfield Estates Ltd v LB Haringey [2023] EWHC 1790 (Admin) has an enforcement history stretching back to 2007. A residential building historically containing two flats was inspected in 2007 and found to be in use as five flats. An enforcement notice was issued in 2008 requiring cessation of the use as five flats, removal of fittings etc, and “to restore the property as two flats”.

This last step is unusual; most material change of use enforcement notices does not seek to specify the use to which the property is to be returned after compliance because there is a right of reversion to last lawful use anyway under s57(4) TCPA 1990 and anything else requires a permission application. Perhaps it was not directed at use at all, merely the physical layout. Nevertheless, it was a requirement of this notice and was not appealed.

The developer evicted the tenants and converted the property to a single dwelling. A council officer was invited to view it. While the property was a single dwelling (and not two flats as required), the officer closed the case as the single dwelling was an acceptable outcome which met the aims of the notice in terms of reducing the over-intensive use. She recorded that it was “agreed that the removal of units and entry door intercom is acceptable for compliance”, sent closure letters saying that the notice had been “complied with to the council’s satisfaction”, and the case was closed.

Council tax payments for flats resumed in 2009. In 2011, the council’s planning enforcement team became aware that the property was in use as 6 flats. A prosecution was attempted but the conviction was quashed on appeal. The prosecution was for reinstatement under s181(5) but the court decided that there had been no operational development capable of prosecution under that section (internal changes not being development). There had of course been a material change of use which is an offence under s179 but that was not the offence prosecuted. No further action was taken, and the use continued until a certificate was sought. The certificate was refused (there being an enforcement notice) and the failure to comply with the notice was prosecuted. The developer was convicted in the Crown Court and appealed.

One of the points argued before the Crown Court was whether the notice had been varied/waived by the decision to accept the single dwelling use as compliance, so removing the need to convert to two flats.  The developer pointed to the closure letters confirming compliance and the site visit note. The council said that it had merely accepted the situation as being an acceptable solution to the breach; it had not waived any requirements of the notice.

The Crown Court found that the requirements of the notice had not been varied or waived. There was no formal notice of variation and the language used by the officer was felt to be inconsistent with formal variation. This aspect was appealed to the High Court by way of case stated.

The High Court found in favour of the council. Whether there had been a waiver was a mixed question of fact and law and therefore susceptible to appeal. But all evidence was relevant in looking at whether there had been a waiver, including officers’ later recollections. These provided an explanation for the officer’s statement that the notice had been complied with.

That was a “compelling explanation” that the council had merely accepted the single dwellinghouse as meeting the aims of the notice without varying it or discharging it. There was no formal notice of variation, simply letters from an officer confirming that the council would take no further action.

The notice had not, therefore, been complied with and the conviction was sound.

The case is a reminder of the need for clarity in communications with developers. The council confirmed that the notice had been complied with when it clearly had not been fully complied with. A better explanation might have been that it was no longer expedient to take further action.

It is a slightly unusual case in that the council prosecuted the failure to “restore the property to two flats” rather than the resumption of the use as multiple flats. As mentioned above, a positive direction as to future use (if that is what this is) is not a step that is found on most notices and arguably goes beyond what a notice can require. Perhaps it was not seen as a future use step and evidence of non-compliance was clear from the LDC application. The reasons for this approach are not recorded in the decision. It is possibly because the notice required cessation of use as 5 flats and resumption was as 6 flats. Best practice is to avoid specifying the number of flats in the notice.

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.