We recently won a planning enforcement appeal against the London Borough of Brent, resulting in the enforcement notice being quashed and planning permission being granted for the completed extensions to the property.
Brent is our busiest borough for planning enforcement work. We deal with more enforcement cases in Brent than in any other council area, and have particular experience with notices involving unauthorised extensions, HMOs, flats, outbuildings and alleged breaches of planning conditions.
Brent is one of the more active enforcement authorities in the country, serving more enforcement notices than almost any other council. If you receive an enforcement notice from Brent Council, it should be taken seriously. But it should also be checked carefully. Enforcement notices are legal documents, and they are not always correctly drafted.
The appeal concerned a house in Woodfield Avenue, Wembley. Brent Council had served an enforcement notice alleging two separate breaches of planning control. First, it alleged that the property had been changed to a mixed use as a House in Multiple Occupation and flats. Second, it alleged that a series of extensions had been built without planning permission, including rear extensions, a hip-to-gable roof extension, rear dormer and front porch. The notice required the use as flats and HMO to cease, the extensions to be demolished and the internal layout of the property restored.
That is the kind of notice that can cause enormous stress. A recipient reading it might understandably think that the council has made up its mind and that demolition is inevitable. It is not. Enforcement notices can be appealed, and this case is a good example of why they should always be reviewed carefully before any decision is made.
The problem with the enforcement notice
The council’s notice was not straightforward. It alleged a material change of use to “a House in Multiple Occupation (HMO) and flats”, with flats said to be located in the outbuilding and on the first and second floors. However, it did not explain how many flats had supposedly been created, which parts of the property were said to be flats, which part was said to be the HMO, or whether the council was alleging one mixed use or several separate planning units.
This was not a minor technical complaint. An enforcement notice must tell the recipient, with reasonable certainty, what they have done wrong and what must be done to remedy it. If the allegation is unclear, it becomes very difficult to decide how to appeal. A case arguing that a building has not been converted into self-contained flats will be different from a case arguing that a mixed HMO/flats use should be granted planning permission.
In the appeal statement, we argued that the notice was ambiguous. We pointed out that it was not clear exactly what was meant by a change of use to a HMO and flats, that the notice did not explain how many flats the council believed existed and that the requirements of the notice did not resolve the confusion.
The inspector agreed. She found that the recipients of the notice could not be reasonably certain what they had done wrong in relation to the alleged change of use. She also found that it was not clear how the notice could be corrected without causing injustice.
The inspector did not decide that the HMO/flats use was lawful, but she did not need to. The problem was that Brent’s notice had not clearly identified the alleged breach. That was enough for the change of use part of the notice to fail.
The extensions were considered separately
The notice also alleged that unauthorised extensions had been built. Unlike the change of use allegation, the inspector found that this part of the notice could be considered separately.
This is another useful lesson. Enforcement notices sometimes bundle together several alleged breaches. Some parts of the notice may be defective, while others may still be capable of being corrected or considered on their merits. It is therefore important to analyse the notice carefully rather than simply treating it as one indivisible document.
In this case, the inspector removed the change of use allegation from the notice and went on to consider whether planning permission should be granted for the completed extensions.
Planning permission granted for the extensions
Although the extensions had not been built strictly in accordance with the earlier approvals, that did not mean they were unacceptable in planning terms. This is one of the most common misunderstandings in enforcement cases. A development may be unauthorised, but still acceptable. If so, planning permission can be granted through a ground (a) enforcement appeal.
The appeal property had previously benefitted from various approvals. The council had confirmed that prior approval was not required for a six metre single-storey rear extension, granted planning permission for a part single, part two-storey rear extension and issued a certificate of lawfulness for a hip-to-gable loft conversion, rear dormer and front rooflights.
These earlier decisions showed that much of what had been built was similar to development the council had already accepted, or development that could form a realistic fallback position.
The inspector agreed that the extensions were acceptable. She found that the rear extension followed the general design and form of the extension previously approved by the council, that the two-storey element was sympathetic to the host building and that the single-storey element, although deeper than recommended in the council’s guidance, was not an incongruous form of development.
She also accepted the roof extensions. Although they were extensive, she found that key features of the original roof, including the eaves and ridge line, had been retained. Importantly, she found that the development had not created the kind of bland and boxy three-storey building that can harm the character and appearance of a house.
The front porch was also found to be acceptable. The council’s guidance resisted front extensions unless they formed part of the predominant character of the area, but the inspector found that most properties in Woodfield Avenue had some form of front addition and that the appeal porch was not out of keeping with the street.
The outcome
The appeal succeeded. The inspector corrected the enforcement notice by removing the allegation relating to the material change of use, allowed the appeal, quashed the notice and granted planning permission for the completed extensions.
This was an excellent outcome for the appellant. The most serious and confusing part of the notice was removed, the physical extensions were granted planning permission and the enforcement notice was quashed.
Why Brent enforcement notices need careful handling
Brent is a busy enforcement authority and many of its notices involve complicated facts: HMOs, self-contained flats, outbuildings, extensions, changes of use and alleged breaches of planning conditions. These are exactly the kinds of cases where careful drafting and precise legal analysis are important.
If the council describes the breach incorrectly, the notice may be vulnerable. If it requires more than is necessary, the requirements may be challenged. If the development is acceptable in planning terms, planning permission may be sought through the appeal. And where older uses or works are involved, there may be arguments about immunity from enforcement action.
At Just Planning, Brent is our single biggest borough for enforcement work (see details of another, similar recent success here). We regularly advise homeowners, landlords and developers facing enforcement action in the borough, and have handled Brent cases involving unauthorised extensions, HMOs, flats, outbuildings and complex enforcement notice wording.
If you have received an enforcement notice from Brent Council, contact us as soon as possible. The appeal deadline is short, and the sooner the notice is reviewed, the more options are likely to be available.
