Appeal Decisions Inquiry held on 12 and 13 January 2012 Site visit made on 13 January 2012 by Mr Keri Williams BA MA MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 8 February 2012

Appeal A: APP/J1535/C/11/2157738 The building known as the Summerhouse at Barkers Farm, Mount End Road, Theydon Mount, Epping, Essex, CM16 7PS • The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. • The appeal is made by Mr Leonard Barker against an enforcement notice issued by Epping Forest District Council. • The Council's reference is ENF/0549/10. • The notice was issued on 6 July 2011. • The breach of planning control as alleged in the notice is the material change of use of the Summerhouse for residential purposes and the creation of a domestic garden curtilage around the Summerhouse. • The requirements of the notice are to: a) Cease the residential use of the Summerhouse; b) Remove all residential fixtures, fittings and associated paraphernalia from the Summerhouse; c) Remove the garden area created around the Summerhouse and remove all the domestic paraphernalia from the garden area including the patio, washing line and hot tub. • The period for compliance with the requirements is 3 months. • The appeal is proceeding on the grounds set out in section 174(2) (c) and (d) of the Town and Country Planning Act 1990 as amended. Since the prescribed fees have not been paid within the specified period, the application for planning permission deemed to have been made under section 177(5) of the Act as amended does not fall to be considered. Summary of Decision: The enforcement notice is found to be invalid and is quashed.

Appeal B: APP/J1535/C/11/2157758 Part of the former dairy building at Barkers Farm, Mount End Road, Theydon Mount, Epping, Essex, CM16 7PS • The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. • The appeal is made by Mr Leonard Barker against an enforcement notice issued by Epping Forest District Council. • The Council's reference is ENF/0062/11. • The notice was issued on 6 July 2011. • The breach of planning control as alleged in the notice is the material change of use of part of the dairy building from B1 Office Use to residential use as a dwelling. • The requirements of the notice are to: a) Cease the use of dairy building for residential purposes; b) Remove the staircase to the attic space and reinstate the ceiling where the staircase enters the attic;

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c) Remove the shower and wash basin from the attic; d) Remove all residential paraphernalia from the dairy building. • The period for compliance with the requirements is 6 months. • The appeal is proceeding on the grounds set out in section 174(2) (c) and (d) of the Town and Country Planning Act 1990 as amended. Since the prescribed fees have not been paid within the specified period, the application for planning permission deemed to have been made under section 177(5) of the Act as amended does not fall to be considered. Summary of Decision: The enforcement notice is found to be invalid and is quashed.

Appeal C: APP/J1535/X/11/2152045 Barkers Farm, Mount End Road, Theydon Mount, Epping, Essex, CM16 7PS • The appeal is made under section 195 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 against a failure to give notice within the prescribed period of a decision on an application for a certificate of lawful use or development (LDC). • The appeal is made by Mr Leonard Barker against Epping Forest District Council. • The application, Ref.EPF/2311/2009, was dated 26 November 2009. • The application was made under section 191(1)(a) of the Town and Country Planning Act 1990 as amended. • The use for which a certificate of lawful use or development is sought is described as residential use. Summary of Decision: The appeal is dismissed.

Preliminary Matters

1. Oral evidence at the Inquiry was given on oath or solemn affirmation. These appeals concern two separate buildings within the wider area of Barkers Farm. The full extent of Barkers Farm is shown on the plans attached to the enforcement notices. The buildings are referred to in the notices as part of the Dairy Building and the Summerhouse and I shall refer to them as such.

2. Conflicting evidence was given at the Inquiry regarding the plans for the Lawful Development Certificate application. The Council has provided the plans which it says formed the application plans after amendments were made to the plans initially submitted. It says that these changes were agreed with the appellant, Mr Barker. The plans include a 1/1250 scale site plan showing part of the Dairy Building outlined in red. Drawing 08-189/01 shows the ground floor layout and 08-189/02 shows the first floor layout. Both these plans also show part of the building outlined in red. The ground floor plan includes a small area of land to the north of the building within the red line. Drawing 08-189/03 gives elevations of the building, with part of the building marked “Domestic Conversion”. A series of other plans, which are marked “Superseded” were also submitted by the Council. Mr Barker contends that amendments were made to the submitted plans without his agreement. They include the deletion of a door from the first floor landing to bedroom 2 and the removal of annotations referring to an entrance and giving a floorspace figure.

3. It is not unusual for amendments to be made to plans following their initial submission. A letter to the appellant from Mr Solon, the Council’s Principal Planning Officer, of 21 July 2010, refers to additional information and plans being required. At the Inquiry, Mr Solon gave evidence on solemn affirmation.

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He explained in some detail how he had inspected the building and found no door from the landing as marked on the plans submitted with the LDC application. He referred to his subsequent meeting with the appellant where he says the changes which needed to be made were agreed. I find Mr Solon’s explanation to be credible. The existence of a series of plans marked “Superseded” is consistent with this account.

4. During the Inquiry it emerged that Mr Barker had taken deliberate steps to conceal the extent and nature of the residential accommodation in part of the Dairy Building. It seems to me that his partner, Ms Germaney, must also have been aware of and party to those steps. Although Mr Barker contends that his actions were not for purposes of deception, nothing is submitted which convinces me of any other explanation. During the Inquiry, I also found Mr Barker to be vague and evasive at times when responding to questions. These matters reduce the weight I can attach to his evidence and that of Ms Germaney in these appeals. I accept the Council’s evidence with regard to the relevant plans.

Appeals A and B: The Validity of the Enforcement Notices

5. At the Inquiry matters were raised which could affect the validity of the enforcement notices. Each notice alleges a material change of use. With regard to part of the Dairy Building, a change from BI office use to residential use as a dwelling is alleged. The Summerhouse notice refers to use for residential purposes and the creation of a domestic garden curtilage.

6. Section 171B(2) provides that “where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.” An important characteristic of a use as a single dwellinghouse is that the dwellinghouse should be self-contained. I do not consider that requirement to be met in this case. There is a lockable door in a garage undercroft area which gives access to the ground floor residential accommodation. However, the appellant’s evidence suggests that frequent and regular use has been made of another entrance to the residential accommodation. It is through a door into the southern part of the building. That part of the building consists of office accommodation, a use for which planning permission was granted in 2004. It is outside the enforcement notice area. A staircase then gives access, via a door which is not fitted with a lock, into the first floor residential accommodation. The staircase would also give convenient access to the ground floor toilet facilities, which are in the rear part of the office area.

7. In addition to this, I take into account the manner in which the Summerhouse has been used in conjunction with accommodation in part of the Dairy Building. The Summerhouse provides spacious and extensive accommodation of a residential character at both ground and first floor levels and is fitted out in a manner similar to a dwelling. Indeed, the Inspector who determined an appeal concerning the building in 2010 (APP/J1535/A/09/2111308) commented that: “Inside there is what appears to be residential accommodation, including a fitted kitchen, lounge, bathroom, dining and study area, and in what seems to be a new first floor, there is a large bedroom, complete with bed. In short the building is in everything but name, a house that the appellant claims to be currently using for leisure purposes.”

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8. The evidence now available, including that given by the appellant at the Inquiry, suggests that the Summerhouse accommodation has been used by himself, his partner, members of his wider family and friends, including use for sleeping accommodation, in a manner which has supplemented the accommodation in part of the Dairy Building. Although the appellant describes his use of the Summerhouse as being for leisure purposes, he appears to do so only on the basis that he says he has not lived in it permanently. It seems to me that it has formed, in effect, part and parcel of the residential accommodation, together with part of the Dairy Building. The area around the Summerhouse, to which notice A refers, has provided a garden associated with the residential use of both buildings, with a short path between them. In all the circumstances I find that the appellant’s residential use at Barkers Farm has relied on parts of the Dairy Building, including part of it outside the enforcement notice and LDC application areas, the Summerhouse and the associated garden area. It is also likely that the parking area in front of the Dairy Building has been used in association with this wider residential use.

9. A notice alleging a material change of use should address the appropriate planning unit. At the Inquiry the Council suggested that, in the light of the evidence submitted, there was a mixed use and that the whole of Barkers Farm, with the possible exception of a barn which is let to a tenant, constitutes the appropriate planning unit, rather than the Dairy Building and the Summerhouse being separate units. That wider area is the area of occupation. I share that view and it seems to me that this amounts to a serious defect in the notices as issued.

10. To address these matters, the Council proposed during the Inquiry that the notice concerning the Summerhouse should be quashed and that the notice concerning part of the Dairy Building should be varied. The varied notice would encompass requirements in respect of both buildings. It would also address other deficiencies in the notices as issued, including the vagueness of the term “domestic paraphernalia” and the inaccurate reference in notice B to an initial B1 office use.

11. The enforcement notice as now put forward by the Council differs in many respects from those issued to the appellant. There would be one notice rather than two. It would cover a much more extensive area and the part of the Dairy Building specified would be extended to take in part of the office area. The allegation would be made on the basis of a material change of use to a mixed use, including residential, Class B1 and agriculture. However, it does not seem to me certain that all elements of the mixed use are captured in the allegation. During my site visit reference was made to storage being undertaken within a stables building and I also saw a paddock area for horses.

12. I appreciate that the Council seeks to clarify the requirements by avoiding reference to domestic paraphernalia. However, in doing so it has introduced additional requirements, some of which would be more onerous. With regard to the former dairy building there is a new requirement to remove all furniture, fixtures and fittings installed to facilitate the residential use. With regard to the Summerhouse there would be several new requirements. They include removing the staircase to the attic and reinstating the ceiling, removing all internal walls, ceiling and partition walls, removing the attic toilet and associated plumbing and removing all windows and doors in the attic and

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roof and closing the resulting openings. In addition, the requirement to reinstate part of the ceiling at paragraph C(i)(a) appears inconsistent with requirement C(i)(b), which includes removing the ceiling. There are also new requirements for the garden area including removal of garden furniture and ornaments, a pergola and all means of enclosure, including hard and soft landscaping.

13. In considering the variation or correction of a notice, I must first determine whether there would be injustice to any party. As I set out above, the notice now put forward incorporates wholesale changes to those issued. The material change of use, as a mixed use, entails a 10-year period for immunity from enforcement rather than the 4-year period applying to a change of use to a single dwellinghouse as alleged in notice B. There are also some more onerous requirements and, with regard to requirements C(i)(a) and C(i)(b), the notice would be unclear.

14. The notice as now proposed was introduced at quite a late stage in the Inquiry. I allowed the appellant to respond in writing after the close of the Inquiry. He has done so and considers that he would be prejudiced by the variations as suggested by the Council. I also take that view. The appellant is not legally represented and his home is at risk. I am not satisfied that he has had sufficient time to consider taking legal or planning advice, or to fully prepare his case in response to the notice as it would be varied. Taking all this into account, I conclude that there would be injustice to the appellant were I to quash the Summerhouse notice and vary the former Dairy Building notice as suggested by the Council. Nor, having regard to the extent of variation which would be required, would it be possible to retain and vary both existing notices without injustice to the appellant.

15. For the reasons set out above I find the notices as issued to be so defective as to be invalid. They are therefore of no worth as documents and no appeal can be founded on them. While it is not strictly necessary to quash a notice which is invalid, I shall do so to avoid any possible doubt. In these circumstances, the appeals under grounds (c) and (d) on each notice do not fall to be considered.

16. I also draw the attention of the Council and appellant to the provisions of s171B(4)(b) of the Act as amended. The effect of this section is that if, within the appropriate 4 or 10 year period, the Council has taken, or purported to take, enforcement action which has, for example, proved defective or invalid, they have a further 4 years in which to issue a second or subsequent notice. This applies provided that the first notice was not out of time and that the matters did constitute a breach of planning control. I appreciate that if a further enforcement notice is issued and appealed there would be a need for evidence to be heard afresh before another Inspector. This would lead to a delay in the resolution of the matters in dispute. However, this is not a sufficient reason to set aside my conclusion that the notices are invalid.

The Lawful Development Certificate Appeal

17. The LDC appeal is made against the Council’s failure to determine the application. In those circumstances, the main issue is whether a decision to grant an LDC would have been well-founded. Planning merits are not relevant in this appeal. They are not an issue for me to consider in the context of an appeal under section 195 of the Town and Country Planning Act 1990 as

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amended, which relates to an application for a Lawful Development Certificate (LDC). My decision rests on the facts of the case, relevant planning law and judicial authority. The burden of proof rests with the appellant and the appropriate test of the evidence is the balance of probabilities. The appellant explains that the LDC application was made on the basis of the “change of use of one of my farm buildings to a single dwellinghouse without planning permission more than four years prior to making the application.”

18. The claimed use as a single dwellinghouse relates to ground and first floor accommodation in that part of the Dairy Building defined in the application. The main ground floor rooms are a living room, kitchen and dining/utility room. First floor accommodation includes a bedroom with en-suite shower, a large walk-in wardrobe and a further bedroom. There is a spiral staircase linking ground and first floors. It has been installed and removed at different times. When it was not in position, a loft ladder was used. There is a garage undercroft beneath part of the first floor accommodation and the application area also includes a small yard on the north side of the building.

19. The appellant says that he moved into the building in 2000 or 2001 and has lived there since then. In support of the LDC application a wide range of supporting documentary evidence was submitted. It includes medical, financial, insurance and other correspondence to the appellant and his partner at Barkers Farm, bills for domestic fuel, other domestic bills, driving licence and vehicle related documentation, tax related documents and domestic bills. Photographs developed on a range of dates between 2001 and 2009 show the interior equipped and furnished for residential use. The appellant also commissioned Mr Fenton, a chartered surveyor, to inspect the premises in June 2001 and on subsequent occasions. Mr Fenton’s report of 2001 confirms the appellant’s use of ground and first floor rooms as living accommodation and describes the extent of the accommodation. He provided a further report in 2002 and letters at regular intervals confirming continued use of the residential accommodation.

20. It seems to me that the evidence submitted demonstrates that the part of the Dairy Building which is the subject of the LDC appeal was used for residential purposes for a period well in excess of four years before the date of application, 26 November 2009. However, I set above my conclusion that its use was not as a single dwellinghouse. It was not self-contained and was part of a residential use depending on part of the Dairy Building outside the application area, the Summerhouse and the associated garden area. Its use formed part of a mixed use of Barkers Farm. In the light of that conclusion, the relevant period for immunity from enforcement for the breach of planning control resulting from that mixed use would be 10 years from the date of an LDC application. The application for an LDC was not made on that basis. There has not been a change of use to a single dwellinghouse as applied for and the LDC application could not have succeeded.

21. My attention is also drawn by the Council to the effect of the judgement of the Supreme Court in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government and another (2011, UKSC15) . In paragraph 58 of the judgement Lord Mance, referring to sections 171(B)(2) and 191(1)(a), says that “their language could not have been intended to cover the exceptional facts of this case, where there was positive deception in

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the making and obtaining of fraudulent planning applications, which was directly designed to avoid enforcement action and succeeded in doing so.”

22. In this case, while there has not been the fraudulent making of a planning application, there is ample evidence of a wilful and positive plan to conceal matters from the Council so as to avoid it taking enforcement action. As I set out above, Mr Barker commissioned a chartered surveyor to survey the residential accommodation, to record and confirm residential occupancy and to return at regular intervals in later years to confirm that it continued. I find this to be indicative of a positive plan. Mr Barker then set out to accumulate the comprehensive evidence of residential use to which I refer above. The photographs which form part of that evidence include examples of his partner, Ms Germaney, posing while displaying a newspaper. They appear to be staged and purposefully designed to demonstrate occupancy at particular dates.

23. Mr Barker was able to carefully control access to Barkers Farm by Council planning officers at times when the Dairy Building was likely to be inspected. While this did not amount to preventing planning officers from visiting the site, it allowed him to employ physical measures to conceal the nature and extent of the accommodation, particularly with regard to the first floor which included bedroom accommodation. A ceiling hatch was formed in the living room and was effectively disguised by decoration to match the rest of the ceiling, as is shown in a photograph taken in October 2003, where it appears with a desk directly below it. The hatch enabled access to the first floor by a loft ladder, which could be withdrawn to the first floor when required. The disguised ceiling hatch could then be closed, so that Council officers did not notice it during site inspections, including visits in 2002, 2003 and 2008. A door from a storage room on the first floor of the neighbouring offices, which gives access a bedroom, was also disguised so that when closed it could be fixed to the wall and appeared from the storage room side to be part of the wall. A photograph dated 25 January 2010 also shows it disguised when seen from the bedroom.

24. Although Mr Barker seeks to distinguish concealment from deception, in this case there is no convincing evidence of any purpose for concealment other than deception. Indeed, in an email to the Council’s barrister, of 2 December 2010, Mr Barker says that “There has always been a loft ladder in the bedroom to ascend and descend to the bedroom, as can be confirmed by enforcement officers Ms Clare Munday and Ms Sharon Hart. The loft ladder was concealed, the concealment of the stairs and deception form part of the four year rule.” While Mr Barker now asserts that he was referring to the legal position in general rather than to his own actions, I do not find that explanation to be credible. In his pre-inquiry statements he also says that “The 4 year rule is a game of hide and seek.” and that “..what has not been seen by anyone from the Council is the concealed entrance to the section above the farm office.” The Council’s evidence refers to Mr Barker telling officers in 2009 that he had acted to conceal the use as a dwelling house from them. Mr Barker’s written evidence contradicts that. He contends that his actions did not amount to deception. He says that it was not for him to point things out to the Council and refers to the existence of first floor windows in the building. Nevertheless, he has acknowledged his use of concealment and I consider the purpose of that concealment to have been deception.

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25. Mr Barker has also submitted various documents, including extracts from judgements and appeal decisions in which the issue of concealment has played a part. However, these predate the Supreme Court judgement in Welwyn Hatfield and I therefore give them little weight with regard to the issue of concealment. Reference is also made to an appeal decision of September 2008 (APP/J1535/A/08/2065857 and APP/J1535/A/08/2072457). In that decision, brief reference is made to appellant confirming that he was living at the appeal site and had done so for some time. While I take that into account, it does not record the appellant as saying he was living in part of the Dairy Building. A plan marked “Existing” submitted by the appellant with the relevant application (EPF/2342/07) does not show residential accommodation in the building, although the Inspector refers to domestic furnishings in the rooms. In response to a Planning Contravention Notice in July 2007, Mr Barker gave his permanent address as Barkers Farm but said that he and Ms Germaney were living at that time in a caravan which was then on the land. He did not refer to living in part of the Dairy Building, although his evidence now is that he has lived in it continuously from 2000 or 2001 to now. He now asserts that, while he was living in the caravan, friends were staying in the Dairy Building. However, no substantive documentary evidence of that is provided.

26. Taking into account the evidence as a whole, I find that there has been wilful, planned and positive deception in this case. In those circumstances, and in the light of the Welwyn Hatfield judgement, the appellant cannot take advantage of the provisions of s191. Having regard to the above and to all other matters raised I conclude that the issuing of an LDC would not have been well-founded and this appeal should not succeed.

Formal Decisions

Appeal A: APP/J1535/C/11/2157738

27. The enforcement notice is found to be invalid and is quashed.

Appeal B: APP/J1535/C/11/2157758

28. The enforcement notice is found to be invalid and is quashed.

Appeal C: APP/J1535/X/11/2152045

29. The appeal is dismissed.

K Williams

INSPECTOR

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APPEARANCES

FOR THE LOCAL PLANNING AUTHORITY: Mr M Beard, of Counsel.

He called: Mr S Solon Principal Planning Officer, Epping Forest District Council.

FOR THE APPELLANT: The appellant, Mr Leonard Barker, represented himself and was assisted by Ms J Germaney.

DOCUMENTS SUBMITTED AT THE INQUIRY:

1. Set of plans from application EPF/2311/2009, including superseded plans. 2. Set of documents submitted by the appellant including various judgement summaries and appeal decisions. 3. Set of photographs, dated 25 January 2010 and 23 October 2003. 4. Letter dated 21 July 2010 from Mr Solon to the appellant. 5. Letter dated 31 January 2011 from the appellant to Mr Solon. 6. Revised enforcement notice submitted by the Council, version with track- changes and related plan. 7. Judgements submitted by the Council: Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government and another (2011, UKSC15); Gravesham Borough Council v Secretary of State for the Environment and Another (1984, 47 P&CR142); Sage v Secretary of State for the Environment, Transport and the Regions and another; Robert Fidler v Secretary of State for Communities and Local Government, Reigate and Banstead Borough Council (2010 EWHC 143). 8. Drawing 08-018/01, August 2006. 9. Council’s closing submissions.

DOCUMENTS SUBMITTED AFTER THE INQUIRY

10. Email from the appellant to the Planning Inspectorate, 18 January 2012.

11. Email from the Council to the Planning Inspectorate, 19 January 2012.

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