Company hit with enforcement notice fails in appeal over decision of planning inspector on immunity period

Neil Cameron KC sitting as a deputy High Court judge, heard that Sentinel Estates appealed against a decision by an inspector appointed by the Secretary of State for Housing, Communities and Local Government.

The inspector had varied the time for compliance but otherwise upheld an enforcement notice issued by Brent for a change of use of the premises in Wembley from two flats to a house in multiple occupation (HMO).

Brent said the unauthorised change of use took place within the last 10 years and caused material harm to residential amenities of the occupiers and neighbouring premises, and resulted in the loss of two family dwellings.

Sentinel Estates challenged the inspector’s decision on the ground of his having erred by applying the wrong immunity period, using 10 years rather than the four years allowed for under section 171B(2) of the Town and Country Planning Act 1990, which it argued should have applied, and so would have led to the appeal being allowed.

Mr Cameron noted there was no binding authority on the point of statutory interpretation in issue in this case.

He said he had to decide if Sentinel Estates could pursue the argument that the four-year time limit for taking enforcement action applied in this case, which would be a new point.

His conclusion was that Sentinel Estates should not be permitted to pursue this citing the principles to be applied where a party seeks to raise a new point on appeal which was not raised below, in Singh v. Dass [2019] EWCA Civ 360.

Mr Cameron and said that even were he wrong on this he would anyway dismiss the appeal.

Previous cases showed that an HMO is a dwellinghouse, but the words “use as a single dwellinghouse” as they appear in section 171B(2) TCPA 1990 did not include an HMO, and therefore the inspector did not err by using the 10-year period rather than the four year one for a single dwellinghouse.

Mark Smulian