London borough defeats High Court challenge over refusal to take enforcement action on garden terrace

The High Court has found the London Borough of Enfield was justified in not taking enforcement action in a dispute between neighbours over the renovation of a back garden terrace.

Mr CMG Ockelton, Vice President of the Upper Tribunal, said in Neophytou & Anor, R (On the Application Of) v Enfield Council [2022] EWHC 521 (Admin): “The truth of the matter is that the facts were uncontentiously not as the claimants asserted, and the reliable evidence all points to the position taken by the council; but it is sufficient for the purposes of a challenge of this sort to find, as I do, that the evidence did not and does not begin to show that the council was not entitled to take the view it did about the difference between the terrace before the works and after them.”

The dispute arose between neighbours who live in Hadley Way, Enfield.

A steep slope means rear gardens are well below the level of the road’s houses and it is common for back gardens to have terraces.

The interested parties carried out various works to their terrace, to which their neighbours objected.

The claimants asked Enfield to take enforcement action but the interested parties then applied for planning permission, part of it retrospective.

That application was refused on grounds including an increased perception of overlooking and loss of privacy to the claimants.

No enforcement action was taken and a similar application was again later rejected but Enfield gave the interested parties time to rectify matters and in August 2020 warned them an enforcement notice would be served if they did not substantially complete remedial works by 1 September.

The claimants said the works were not completed but again no enforcement action was taken, and they commissioned a report from planning consultancy Litmus.

After reading this, Enfield told them: “Overall I can confirm that we have concluded that we do not intend to undertake any further enforcement action for development that has occurred to date at [the interested parties' property]

“Those elements of the development that did cause us concern were rectified by the works that were undertaken over the summer”.

The Vice President found the claimants had “entirely failed to show that the facts of the dimensions of the new terrace as compared with the old were uncontentious and were as they assert”, and dismissed their grounds associated with this.

He also dismissed the ground that Enfield applied an immaterial consideration in treating a raising of the ground level by under 30 cm as development permitted by the GPDO.

This failed “either because the council took a view that it was entitled to take about the enforcement against any breach, or because there was no breach”.

Mark Smulian