The case involved an appeal against an inspector’s decision to quash an enforcement notice that had been issued by the London Borough of Brent (“Brent) and which alleged (among other things) the unlawful erection of a rear extension to a mid-terrace house in Brent's area. The previous owner of the house had obtained approval, through the prior approval process, for the construction of the extension. Soon after, the house was let to six tenants such that its use was changed from C3 to C4. The inspector decided that it was “academic” whether the extension was constructed while the house was in a C3 or a C4 use because in both cases it “would still be a dwelling house” and would still benefit from Class A permitted development. Brent challenged the decision on the basis that a C4 HMO could only be a “dwelling house” for the purposes of the GPDO if it was “occupied by a single household or in a manner akin to occupation by a single household”. The inspector had not considered this issue. Brent also alleged that the extension differed from the plans approved in the context of the prior notification process and that the inspector should have noticed this on his site visit, despite it never having been raised by Brent at the s,174 appeal.
Lang J granted Brent permission to bring the statutory appeal and the Secretary of State indicated that it was prepared to consent to judgment. Robert Palmer QC (sitting as a Deputy High Court Judge) however agreed that Brent’s case was misconceived and that it was only necessary for the inspector to have considered whether the house was a dwelling house by reference to the orthodox and well-known test in Gravesham - which he did - and did not need to find, in addition, that the house was “occupied in a manner akin to occupation by a single household” before he could lawfully have concluded that the house was a dwelling house. The Deputy Judge also found that there was no obligation on the inspector to go beyond the parties’ cases in determining the appeal such that Brent’s Ground 2 was also dismissed. Brent applied for permission to appeal but the Deputy Judge held that the application had no prospect of success and raised no important issue, so permission was refused.
George Mackenzie acted for the Second Respondent, Mr Y Rothchild, and acted on a public access basis. He was however assisted throughout by Mr Shulem Posen of Eade Planning. The judgment can be seen here.