A flat owner in Palmers Green came to us after Enfield Council ordered him to stop using his roof terrace and remove almost everything associated with it.
The first-floor flat opened through French windows onto the flat roof of the rear extension below. The extension had been built in 2012 and the roof had been used as a terrace ever since.
When planning permission was granted for the extension in 2011, Enfield imposed a condition prohibiting any balustrade or other enclosure and preventing the roof from being used for recreation. No enforcement action was taken until 2023.
The council then served an enforcement notice requiring our client to stop using the roof, remove the balustrade, take away the tables and chairs, remove the plant pots and decorative lighting, and install a Juliet balcony to prevent access from the flat.
He was given two months to comply.
The earlier certificate of lawfulness application
Before the enforcement notice was served, our client had tried to resolve the matter himself by applying for a certificate of lawfulness.
The application relied on the fact that the terrace had been used for more than ten years. Enfield refused it, saying that the evidence was not sufficiently precise and unambiguous to prove continuous use for the required period.
The underlying evidence existed, but it had not been assembled strongly enough.
We appealed against the enforcement notice on grounds (a), (d) and (f). Ground (d) concerned immunity from enforcement after the passage of time. Ground (a) concerned planning permission for the balustrade, while ground (f) challenged the steps that the council required our client to take.
How the ten-year immunity case was proved
The appeal was won on the quality of the evidence.
We traced the former owner of the downstairs flat, who had arranged for the extension, decking and original balustrade to be installed. He provided a sworn statutory declaration confirming when the extension was built and when the terrace was created.
A neighbour who had lived nearby for around twenty years provided a second declaration. He confirmed that the terrace had been used regularly since at least November 2012.
We also obtained a dated photograph from November 2012 showing the decking being laid. The council’s own aerial photography from April 2013 showed the decking and coping stones clearly.
Together, the evidence established that the roof terrace had been used continuously for the relevant period. The inspector described the statutory declarations and photographs as “compelling”.
What the inspector decided
The inspector found that the use of the roof terrace was immune from enforcement. The relevant requirements of the enforcement notice were deleted, including the requirements to remove the tables, chairs, plant pots and decorative lighting.
He also found that those items could not be treated as development under planning legislation. Enfield therefore had no legal basis for requiring them to be removed. The requirement to install a Juliet balcony could not be justified either.
The appeal succeeded in relation to the balustrade as well. The inspector found that the replacement railings did not cause sufficient harm to the character and appearance of the area and granted planning permission for them.
The enforcement notice was quashed.
The planning merits were not straightforward
Planning merits and immunity from enforcement are different questions.
The inspector accepted that, if Enfield had acted earlier, before the relevant immunity had accrued, the terrace would probably have been refused permission because of its effect on neighbouring privacy.
That did not decide the appeal. The evidence established that the use was already immune from enforcement, which meant that the planning merits of the terrace use no longer determined the outcome. The balustrade was then considered separately and found acceptable on its own planning merits.
Our client’s earlier certificate of lawfulness application had been refused because the evidence was too thin. The appeal succeeded after the same underlying history was supported by precise dates, sworn declarations, photographs and independent corroboration.
What this case shows
An enforcement notice should not be treated as a final determination that the council is right.
The wording of the notice must be examined carefully. So must the planning history, the date of the alleged breach and the evidence showing how the property or use has changed over time.
In an immunity case, a general statement that something has “been there for ten years” is unlikely to be enough on its own. The evidence needs to show what existed, when it existed and whether the relevant use continued without a break.
A neighbour’s declaration, an old photograph or historic aerial imagery can sometimes be more important than the council’s current view of the property.
Facing enforcement action in Enfield?
Enfield has sharply increased its use of formal enforcement action in recent years — our guide to planning enforcement in Enfield explains how the council now operates. If you have received an enforcement notice, a certificate of lawfulness refusal or another enforcement letter, do not wait until the compliance deadline approaches.
Send us the notice and any evidence you have about the planning history or the age of the development. We will review the position, explain whether immunity or another ground of appeal may apply and advise you on the most sensible next step.
If you are facing enforcement action in Enfield or elsewhere in England, please contact us for advice.
