Judge rejects challenge to enforcement notice appeal decision by planning inspector

Owners of the adjacent buildings Empire Communications and Oakenfield Enterprises said a planning inspector had been wrong to conclude that the short-term lettings use was sui generis rather than use class C3.

They further argued before Tim Smith, sitting as a deputy High Court judge, that the inspector either misinterpreted the enforcement notice as applying to short-term lets of longer than 90 days, or failed to state clearly what ‘short-term lets’ are, so that the appellants were unable to tell what type of lettings are prohibited by the notice.

Other points argued by the appellants included that the inspector erred in finding that the alleged uses had not become immune from enforcement action by reason of the passage of time, and that the enforcement notice was unlawful because it prohibited the use of substantial parts of some flats but not other parts of them.

Mr Smith said in his judgment that the buildings were originally in lawful use as offices but were converted under the Town & Country Planning (General Permitted Development) Order 2015 and Camden had confirmed that residential conversion was permitted.

The appellants' business plans showed they intended to allow a mixture of stays of less than 90 nights and longer stays.

Mr Smith noted ‘90 nights’ was significant due to “legislation peculiar to residential properties in central London”.

In August 2017 Camden began an investigation into a suspected breach of planning controls at one property, which alleged that either there had been a change of use from permanent residential dwelling (C3) to serviced apartments (Class C1) and short term or holiday letting - sui generis use - or that a breach of planning permission had occurred under section 25A(2)(a) and (b) of the Greater London Council (General Powers) Act 1973.

Camden eventually served a notice that required the appellants to "permanently cease the use of the property for short-term let serviced apartments … [and] … return the use of the propert[ies] to office accommodation".

The appellants appealed to the inspector on the grounds that the properties had lawfully been converted from office use to residential under Class C3 and that they remained in that use, so there was no breach of planning control to enforce against.

Mr Smith said the substantive dispute was over whether use as serviced apartments for short-term lets has occurred in a manner which falls outside Use Class C3, such that the use is sui generis.

Camden considered the buildings to operate as a single unit, while the appellants said the use was in the Class C3 for each individual apartment.

The inspector had concluded on the balance of probabilities that the use of both buildings was sui generis for serviced apartments for short term lets.

Mr Smith said: “It is clear beyond doubt that the inspector approached the task he was faced with in a legally correct way.”

He continued: “The inspector's conclusion on the classification of use is properly an exercise of his expert planning judgement with which this court will not lightly interfere. The facets of the occupation assessed by the inspector…were relevant to the assessment, and his conclusions in relation to them were within the range of reasonable responses from a decision-maker.

"It was open to the inspector to accept the appellants' argument that the use was as a series of individual units of occupation all in residential use (class C3), or the council's argument that the properties comprised a single planning unit used as serviced apartments (sui generis). The inspector preferred the latter.”

Mr Smith said there was no rationality challenge to the inspector's conclusions on use. “Even if there had been, given how the inspector approached the question before him I consider that such a challenge would be doomed to fail as an impermissible attack on the exercise of his planning judgement”

He also dismissed all other grounds and concluded that this meant the appellants’ costs challenge also failed.

Mark Smulian