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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nestorova-Goremsandu v Secretary of State for Communities & Local Government & Anor [2010] EWHC 793 (Admin) (16 April 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/793.html Cite as: [2010] EWHC 793 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPEAL UNDER SECTION 289 OF THE TOWN AND COUNTRY PLANNING ACT 1990
Strand, London, WC2A 2LL |
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B e f o r e :
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KATYA STOILOVA NESTOROVA-GOREMSANDU |
Appellant |
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- and - |
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SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT |
First Respondent |
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LONDON BOROUGH OF HARROW |
Second Respondent |
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Sarah Hannett (instructed by The Treasury Solicitor) for the First Respondent
The Second Respondent was not represented at the hearing and made no submissions.
Hearing date: 9 March 2010
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Crown Copyright ©
Mr. Justice Silber:
I. Introduction
(a) In dismissing the Appellant's appeal under ground (d) of section 174 (2) of the 1990 Act against the Enforcement Notice, the Inspector: (a) failed to take into account a material consideration, namely the evidence of Mr Hassan of Fika Construction that he had carried out building works on the extension in March 2004 ("The Hassan Evidence Issue"); and failed to give adequate reasons for her decision ("The Reasons Challenge Issue"); and
(b) In determining to make an order of costs against the Appellant in favour of the Second Respondent, the Inspector erred in finding that it was unreasonable to pursue the appeal under section 174(2) (f) in that her judgment was based on a material error of fact ("The Costs Issue Appeal").
II. Legal Background
"An appeal may be brought on any one of the following grounds—
(a) that in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged…
(d) that at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters…
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach…"
"Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed."
(a) Matters of planning judgment are within the exclusive province of the Inspector. The weight (if any) to be attached to a material consideration in determining a planning appeal is entirely a matter for the decision-maker (Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 WLR 759, per Lord Keith at p. 764G-H and per Lord Hoffman at p. 780 F-H).
(b) Decision letters should be read in a "straightforward down-to-earth" manner "without excessive legalism or exegetical sophistication" (Clarke Homes v Secretary of State for the Environment (1993) 66 P. & C.R. 263, per Sir Thomas Bingham MR at pp. 271-272).
III. Factual Background
IV. The Evidence before the Inspector
(a) Oral and written evidence from Mr Hassan which I will return to consider in paragraph 28 below and which is at the heart of the appeal;
(b) Oral and written evidence from Mr Georgio, the owner of a local restaurant;
(c) Oral and written evidence from Michael Williams, an individual who delivers newspapers in the locality.
(d) Invoices produced by Fika Construction, by Apex Garden & Building Materials, by P Aramides and by Brothers Harizanovi; and
(e) Declarations from EuroScrews Limited, Nayna Patel, Mr Nazilvatan, Mehmet and Mr S Patel.
(a) Aerial photographs dated 13 July 2003 and 1 July 2006 with the earlier one showing that the Extension did not exist in 2003. The date of the aerial photographs had been verified by the independent company producing them;
(b) Photographs taken of the extension on 16 January 2006 that were said to show that "works on the extension were in progress but not completed"; and
(c) Records of complaints relating to the construction of the Extension dated from December 2005 and January 2006.
V. The Inspector's Decision Letter
"In particular, there is no evidence of electrical or other services (electrical equipment being used for construction purposes appears to be connected to long extension leads from the main property); there is no evidence of internal walls; there is no evidence of internal fittings or kitchen units; there is no evidence of internal decoration such as plastering or painting yet when I visited the site I saw that it is plastered throughout with heavily moulded plasterwork on the ceilings. In my conclusion, the 2006 photographs clearly indicate an extension in the process of being constructed, as opposed to one which is having its roof and windows replaced."(DL14)
"As a matter of fact and degree, and on the balance of probability, the extension did not exist for more than 4 years prior to the issue of the Notice but rather there is clear evidence of the extension being constructed in late 2005 and nearing completion in September 2007."(DL 20)
VI. The Hassan Evidence issue
VII. The Reasons Challenge Issue
"30.The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognizing that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision" .
VIII. The Costs Issue Appeal
"the removal of the dormer windows and the creation of a pitched roof were considered by the previous Inspector in 2007 and rejected and there has been no material change in circumstances since that time. To my mind, the proposed removal of these elements together with the removal of the single flat roof part of the Extension would not reduce the depth of the main body of the extension which would remain at 9m".