Barker, R (on the application of) v Brighton and Hove City Council & Ors

Judgment

Mrs Justice Lang :

The Claimant applies for judicial review of the Defendant’s decision not to proceed with enforcement action in respect of a newly-built house at 14A Upper Hollingdean Road, Brighton Sussex (“the dwelling house”).

On 14 th June 2007, the Defendant granted the developer planning permission to construct a residential development at a site previously used for industrial purposes, to the rear of 14 Upper Hollingdean Road, Brighton. The permission comprising a change of use from B1/B2 industrial/business to C3 residential conversion of main building into two town houses; erection of a single dwelling house in the north-east corner of the site and demolition of outbuildings. The current claim only concerns the single dwelling house in the north-east corner of the site.

The Claimant and the two Interested Parties live in Hollingbury Road, Brighton and they are affected by the development as it backs on to their rear gardens.

The claim was filed on 14 th June 2012. Permission was initially refused on the papers, but then granted at an oral renewal hearing on 5 th December 2012.

Decision challenged

On 20 th March 2012, the Defendant’s planning officers decided that “it would not be expedient to take enforcement action against this unauthorised development”. The reasons they gave were, in summary:

The poor quality of the building construction could not be addressed by service of an enforcement notice.

The increase in the height of the dwelling house did not cause sufficient harm to the outlook and privacy of neighbouring properties or the overall character and appearance of the building. The problem of overlooking could be overcome by increasing the height of the boundary wall from 1m to 2m.

The planning conditions attached to the permission could not be enforced as the structure was not authorised.

The planning merits were not considered in the appeal against the refusal to grant retrospective planning permission.

The Defendant’s concession

The Defendant has now conceded that the decision of 20 th March 2012 was legally flawed. It did so solely on the basis that its officers failed to consider whether enforcement action could or should have been taken to achieve the effect of condition 5 attached to the planning permission, which required the bathroom windows to be obscured. However, the Defendant contended that the four year time limit for taking enforcement action has now expired because the building operations were “substa