an Inspector appointed by the Secretary of State for Communities and Local Government

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1 Appeal Decisions Inquiry held on 11 August and 19 October 2015 Site visit made on 10 August 2015 by Diane Lewis BA(Hons) MCD MA LLM MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government Decision date: 24 November 2015 Land at 408 Hackney Road, London E2 7AP Appeal Refs: APP/E5900/C/14/ , , , , , , , The appeals are made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act The appeals are made by Mr Adal Kahn, Mrs Rizwana Khan, Mr Majid Khan, the Bank of Scotland and Mr R Humphries against an enforcement notice issued by the Council of the London Borough of Tower Hamlets. The Council's reference is ENF/14/ The notice was issued on 1 October The breach of planning control as alleged in the notice is without the benefit of planning permission the unauthorised change of use of the property to nine self-contained flats. The requirements of the notice are: 1. Cease the use of the property as self-contained residential units. 2. Remove all but one of the kitchen and kitchen related facilities from the property (including the kitchen cupboards, kitchen sink, kitchen worktop surfacing, service connections to power and utility supplies). 3. Remove all resultant debris from the premises. The period for compliance with the requirements is 3 months. Appeal Ref: APP/E5900/C/14/ The appeal is made by the Bank of Scotland plc in respect of Flats 2C and 2D, 408 Hackney Road. The appeal is proceeding on the ground set out in section 174(2)(d) of the Town and Country Planning Act 1990 as amended. Appeal Ref: APP/E5900/C/14/ The appeal is made by the Mr Adal Khan in respect of 408 Hackney Road. The appeal is proceeding on the grounds set out in section 174(2)(d) and (g) of the Town and Country Planning Act 1990 as amended. Appeal Ref: APP/E5900/C/14/ , , The appeals are made by Mrs Rizwana Khan in respect of Flat 1, Flat 4, Flat 6A(6), 408 Hackney Road. The appeals are proceeding on the grounds set out in section 174(2)(d), (f) and (g) of the Town and Country Planning Act 1990 as amended. Appeal Ref: APP/E5900/C/14/ The appeal is made by Mr Majid Khan in respect of Flat 3, 408 Hackney Road. The appeal is proceeding on the grounds set out in section 174(2)(d), (f) and (g) of the Town and Country Planning Act 1990 as amended. Appeal Ref: APP/E5900/C/14/ , The appeals are made by Mr R Humphries in respect of Flat 5 1 st Floor and Flat 6 2 nd Floor, 408 Hackney Road. The appeals are proceeding on the grounds set out in section 174(2)(d) of the Town and Country Planning Act 1990 as amended. Summary of Decisions: The appeals with the exception of appeal ref

2 are allowed and following correction the enforcement notice is quashed. Preliminary matters 1. The Council of the London Borough of Tower Hamlets made three applications for costs, against (i) Mr Adal Khan, (ii) Mr Majid Khan and Mrs Rizwana Khan, and (iii) the Bank of Scotland plc (the Bank). Costs applications were also made by Mr Adal Khan, and by Mrs Rizwana Khan and Mr Majid Khan against the Council of the London Borough of Tower Hamlets. These applications will be the subject of separate Decisions. 2. All oral evidence at the Inquiry was taken under solemn affirmation. 3. The recent history of the ownership, leasehold and management arrangements in relation to the property are not straight forward. Litigation has been ongoing between Mr Adal Khan and Mrs Rizwana Khan and Mr Majid Khan (R & M). This may account for some of the inconsistencies in the documentation. It is also relevant in so far as it in part accounts for the number and form of the appeals and the scope of the associated evidence presented by the appellants on each of the flats. At the outset of the appeal process R & M did not wish to have their appeals heard at the same time as the appeal by Mr Adal Khan because of legal proceedings. However, a joint inquiry was arranged by the Planning Inspectorate for reasons of efficiency and natural justice. Having reviewed the appeals I agreed with that approach. At the Inquiry there was a degree of commonality in purpose. Even though all the different parties made separate appeals, each supported by their set of evidence, I will assess the evidence as a whole to decide whether the notice should be upheld or quashed. 4. The appellant Mr Humphries was not present at the Inquiry. Written confirmation was received on 3 August 2015 from Blake Morgan (acting on behalf of R & M) that he was no longer involved in the appeals. Seemingly a separate appeal was submitted by Mr Humphries in respect of flat 5 because of issues with the lease. Subsequently, as confirmed at the Inquiry, Mr Barron took over as agent on this appeal and evidence on flat 5 was presented as part of the case by R & M. On the basis that no substantive evidence was submitted by Mr Humphries in connection with flat 6 and the confirmation from Blake Morgan I intend to take no further action on this appeal (ref ). 5. The Bank made clear in its written submissions before the Inquiry that its interest was as a mortgage lender with intended security against leasehold interests. Accordingly the Bank was unable to provide any first hand evidence of the actual use of the property or conduct of the proprietors of the various elements of the property. The Bank was represented and took part in the Inquiry proceedings. The Bank relied on the evidence adduced by its coappellants in respect of the issue of continuous use. 6. The numbering of the flats has not been consistent, which is not helpful in identifying the specific flats in question when referred to in some of the written evidence 1. For the purposes of this decision I will refer to the flats on the ground floor as flat 1 (adjoining the office unit), flat 3 is the rear flat accessed 1 For example, the leases in the charges register refer to flat 2a (first floor), flat 1A (first floor), flat 1B (ground floor), flat 2B (ground floor), flat 1C (third floor). 2

3 from the yard and flat 2 is in between. On the first floor is flat 4 with an outlook to the front and flat 5 is at the rear. The second floor consists of flat 6A to the front and flat 6 to the rear. On the third floor are flats 7 and 7A. On the accompanied site visit it was not possible to enter all the flats but there was general agreement that the layouts of flats 1, 2, 3, 4, 5, 6 and 6A were reasonably in accordance with the plans submitted by Mr Barron. 7. Flats 2C and 2D, which are the subject of the appeals by the Bank, are equivalent to flat 2 and flat 7A respectively, although as discussed later the size and layout may not be the same as the lease plans of flats 2C and 2D submitted by the Bank. The enforcement notice Hackney Road is a four storey building plus a basement with a projecting ground floor frontage onto Hackney Road. There was no dispute that at the time the notice was issued the property was in use as 9 self-contained flats on the ground, first, second and third floors, plus an office/business unit(s) at ground floor (in the projection) and basement level. 9. At the Inquiry I asked whether the allegation should describe the unauthorised use as a mixed use. The Council confirmed that it raised no objection to the offices and that this part of the property was not intended to be subject to the enforcement notice. This position is also reflected in the statement of common ground. The Council requested that the notice be corrected by the substitution of a new plan that excluded the front area of the property from the area outlined in red. The other main parties at the Inquiry did not object to this proposed correction. The evidence was directly primarily to the flats and I am satisfied that to correct the notice by the substitution of the new plan will not cause injustice. On reflection I do not intend to specifically exclude the basement because this area is where the gas/electricity meters for the flats are located. 10. I explored with the Council and the appellants the approach to be adopted in the ground (d) appeals and more specifically whether the lawful use of all nine flats had to be established in order for the appeals to succeed. The parties were invited to consider the planning unit and how this consideration may affect the approach to be taken. The submissions and the evidence were presented on the basis that each flat was a separate dwellinghouse and, more particularly from the appellants side, that each flat was now a separate planning unit. There was recognition that some but not all the flats may be found to be lawful and, if that was the case, the notice would need to be varied before being upheld. Planning history 11. The recent planning history is relevant to the main issues in the ground (d) appeals. The basic facts are summarised for ease of reference. 12. A planning application dated 13 January 2009 (ref. PA/09/00058) proposed refurbishment, a rear addition and the installation of a new roof to create 8 residential units and office use of the former pub (the 2009 application). Planning permission was granted on 11 March

4 13. A planning application was submitted on 10 June 2011 (ref. PA/11/01506) for the refurbishment and redevelopment of vacant public house with basement level, comprising part three and part five storey building along Teesdale Close to provide 9 residential units (2x1 bedroom flats, 3x2 bedroom flats and 3x4 bedroom flats) and the conversion and creation of 145 m 2 of office floorspace (Use class B1) and associated works (the 2011 application). Planning permission was refused on 26 August 2011 and an appeal against that decision was dismissed on 9 May In August 2013 planning permission was granted for the erection of a 4 bedroom town house in the rear yard (ref. PA/13/01501). 15. An application for a lawful development certificate (LDC) for existing use as 7 residential dwellings was withdrawn on 19 November 2013 due to issues of ownership. An LDC application in respect of an existing use as 5 residential flats (flats 1, 3, 4, 5 and 6) was refused by the Council on 16 January A repeat application for 5 flats was withdrawn on 13 May 2014 due to a lack of information. A further application submitted on 9 June 2014 seeking an LDC for existing use as [5] residential dwellings was not determined by the Council. Appeals on ground (d) Background and main issues Hackney Road used to be a public house known as the Durham Arms. The probability is that the pub occupied the ground floor and on the three floors above there was a single residential unit linked to the pub. The pub closed in the mid 2000s, the Council being of the view this occurred in late The freehold of the property was acquired by Mr Adal Khan in 2008 through his company Carrington Sears Limited. In June 2011 the freehold was transferred to IGI Properties Limited of which Mr Khan is the sole director. As noted above there is no dispute that the breach of planning control alleged in the notice has taken place. 17. The ground (d) appeals claim that the stated breach of planning control is immune from enforcement action because the time for enforcement action has expired 2, whether in terms of all nine flats in the case of Mr Adal Khan, five of the flats in the case of R & M and two of the flats in respect of the Bank. 18. Each self-contained flat is a single dwelling house by reason of having all facilities required for day to day domestic living within the unit. Space for common use by the occupiers of the units is restricted to access, internal circulation and the rear yard. The time limit for taking enforcement action against the sub-division of the building into the self-contained flats is four years. The time period begins from the date of the breach It is a matter of fact and degree when the change of use actually occurred. Consideration has to be given to the physical works to create units capable of 2 Section 174(2)(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. Section 191(2)(a): A use is lawful for the purposes of the 1990 Act at any time if no enforcement action may be taken because the time for enforcement action has expired. 3 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 (section 171B(2)). 4

5 providing viable facilities for living and also when the residential use of the units first occurred. The unauthorised use as a self-contained flat must have continued throughout the four year period before it can achieve lawfulness. A matter to consider is whether or not there was any period when a flat was not physically occupied, even though available for occupation, when the local planning authority could not have taken enforcement action against the use 4. On this issue, Lord Mance in Welwyn Hatfield concluded that too much stress has been placed on the need for actual use and that it was more appropriate to look at the matter in the round and to ask what use the building has or of what use it is 5. The clear distinction between occupation and use is very relevant in these appeals. 20. Without prejudice to consideration of continuous use, concealment forms the primary basis of the Council s case. The Council submitted that there was deception in matters integral to the planning process that was positive, flagrant and sustained. 21. With these points in mind, the main issues are: Whether, on the balance of probability, the material change of use of the property to nine self-contained flats occurred on or before 1 October 2010, and whether the use of each self-contained flat has continued throughout the subsequent four year period. Whether there has been concealment of the change of use to nine selfcontained flats by positive deception, so as to engage the Welwyn principle and deprive the appellant(s) of the benefit of the four year limitation period in section 171B(2). Evidence 22. The burden of proof is on the appellants to prove their respective cases on the balance of probability. The documentary evidence includes assured shorthold tenancy agreements, bank statements, statutory declarations, energy performance certificates, information relating to utility provision, marketing particulars, lease documents, survey reports, personal statements and various miscellaneous documents and correspondence. The Council s case focused on identifying weaknesses in individual elements of the evidence. A limited amount of evidence was produced to cast doubt on the appellants versions of events. 23. I will assess all the various strands of evidence individually and collectively in order to come to my overall conclusions. Several general points are worth highlighting at the outset. a) Tenancy agreements on their own are not a conclusive form of evidence of residential use and occupation. An agreement that is incomplete is of little weight and would need to be backed up by additional evidence, which may take the form of statutory declarations from the tenants, financial information and so on. 4 Secretary of State for the Environment v Thurrock Borough Council [2002] EWCA Civ 226, also referred to in Swale Borough Council v First Secretary of State & Lee [2005] EWCA Civ Secretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council [2011] UKSC 15 paragraph

6 b) Energy Performance Certificates (EPCs) require an internal inspection. There is no requirement for a certificate to relate to a layout plan, which means that the position of the flat within the property is not confirmed. This is significant because the EPCs describe flats 3, 4 and 5 all as mid floor flats, whereas the appellants agree that flat 3 is a ground floor flat. c) The Bank statements submitted by R & M were not accompanied by a schedule or commentary and very few entries were highlighted. This did not assist the analysis of this information. d) There is no documentation related to any conversion works, such as builders invoices/receipts. e) Mr Adal Khan did not produce a written statement or proof of evidence but he gave oral evidence. His evidence was shown to be unreliable by reference to inconsistencies with the evidence he gave at a county court hearing and his inaccurate recollection over site visits to the property. 24. As a general principle the appellants evidence does not have to be corroborated by independent evidence in order to be accepted. In respect of the lawfulness of an existing use, advice in the Planning Practice Guidance on lawful development certificates is relevant. If the local planning authority has no evidence itself, nor from others, to contradict or otherwise make the applicant s version of events less than probable there is no good reason to refuse the application, provided that the applicant s evidence alone is sufficiently precise and unambiguous on the balance of probability. Material change of use 25. Mr Adal Khan s evidence was that the conversion of the property into nine flats was carried out in a single development in the last quarter of 2008 or January He relied primarily on his recollection of seeing the property at that time when he visited with his wife and sister. He maintained that Mr Shaukat (a witness for R & M), was wrong to say that 7 units existed after the first conversion in In the initial statement of case reference was made to information obtained from utility companies. This evidence is somewhat ambiguous. The confirmation by British Gas that 7 domestic gas metres were installed on 10 December 2008 does not support a single conversion, whereas the confirmation by EDF Energy that flats 1 to 9 were reenergised in March 2009 suggests differently. The information from British Gas dated 4 August 2014 confirmed only that there were no outstanding charges for the 9 residential units at that date, not that electricity had been supplied to all 9 units from 20 March Mr Khan did not submit any significant evidence of use of flats 6, 6A and 7A before March 2010, a factor against a single conversion. The relevance of the 5 EPCs (addressed as Flats 1, 2, 3, 4 and 5) is limited to supporting the contention that the property was converted into at least 5 flats by January Mr Adal Khan s case was disputed through the oral evidence of Mr Barron and Mr Shaukat on behalf of R & M. They maintained that the property was converted into 7 flats in late 2008/early A year or so later the single flats on the second and third floors were each subdivided into 2 flats to give a 6

7 total of 9 flats. Mr Barron s written evidence in his proof is not entirely consistent on dates and nowhere did he refer to a second subdivision or draw a distinction between flat 6A and the other 4 units 6. However, Mr Barron had no knowledge of the property until he was first instructed towards the end of Therefore he was reliant on information by others and attention to detail was lacking. 28. Mr Shaukat explained his close involvement with the property through his business association with Mr Adal Khan from 2009 to 2011 and then his management of R & M s flats since 2013 (Mrs Rizwana Khan is his sister). His evidence gained credibility by its detailed nature and supporting documentation. This written material included correspondence with Mr MacCarthy-Morrogh, dating back to his tenancy between January and April He confirmed that the third floor consisted of a single flat. There is no reason to doubt the authenticity of the document or the information, taking account of the link to Carrington Sears. The information on dates is consistent with a subsequent tenancy agreement dated 23 May 2009 submitted by Mr Adal Khan. Also, Mr Adal Khan accepted in his oral evidence that flat 7 could be treated as one unit at that time but that since May/June 2010 there were 9 flats. 29. Much reliance was placed on a letter from Foxtons. Mr Shaukat repeatedly maintained that Foxtons confirmed in the letter that the brochures and floor plans of the flats date back to January As a matter of fact the letter confirms only the date when Foxtons were originally instructed on the specified flats flats 1, 3, 4 and 5 on 7 January 2009 and flat 6A on 22 January There is no reference in the letter to the brochures and floor plans. 30. In addition, a letter from British Gas dated 2 January 2014 confirmed that accounts were created for flats 1 to 7 on 23 July 2009 as British Gas arranged for the supplies to be installed. This provision fits with an initial conversion to 7 flats. The remaining information on meter installation adds to the evidence about the property s conversion to flats in 2009 but otherwise is of limited help. 31. The Bank obtained valuation reports in respect of each of the five flats in which it has an interest as mortgagee. These reports relate to inspections carried out at various times over the period 8 July 2008 and 22 September The reports provide a strong indication that conversion of at least part of the property had taken place by mid/late On the matter of a second subdivision, the description in an inspection undertaken on 29 September 2009 indicates a larger flat on the top floor than exists now 8. This description is consistent with the information from Mr MacCarthy-Morrogh. 32. A survey dated 8 July for Mrs R Khan refers to a converted two bedroom flat on the first floor of this four storey building with a gross external floor area 6 Mr Barron s proof states the property was converted to offices and residential flats in and was completed by January 2009 (paragraph 2.2). At paragraph 3.1 Modifications to the layout were undertaken in mid 2008 resulting in the current layout. Later at paragraph 3.3 he states that the property was already converted since mid At paragraph 4.1 he states R & M contend that the original conversion was undertaken in 2008 and completed by mid Appendix 23 to Mr Shaukat s rebuttal statement 8 Flat 2D inspection by Birmingham Midshires on 29 September 2009 where the flat was described as a 2 bed room top floor converted flat with a gross external floor area of 55 m 2 and having 2 bedrooms 1 living room and 1 bathroom. 9 Both Mr Shaukat and Mr Cain (the Council s witness) give the inspection date as 9 July 2009 but the report in my bundle of documents states 9 July

8 of 52 m 2. Mr Shaukat explained that shortly after the purchase, the freeholder subdivided the flat into two separate self-contained flats (flats 4 and 5) and that this is the subject of litigation. This explanation was not disputed by Mr Adal Khan. 33. The conversion of the property into 9 flats, whether by January 2009 or by January 2010, is not consistent with the descriptions of the property contained in the 2009 and 2011 planning applications. A note of a pre-application meeting on 3 September 2008 reported on the 2009 planning application form described the site as being a vacant public house and the three upper floors appeared to be in accommodation ancillary to the public house. The 2009 application form indicated 1 existing dwelling unit. The 2011 application indicated the existing residential accommodation consisted of 3 flats. The Council confirmed that no flats were registered for Council tax purposes until flats 1, 2, 3, 4, 5, 6, and 7 were first registered 1 October No-one appeared on the register of electors until occupiers of flats 2, 4 and 6 were registered in I will return to these matters in more detail later in my decision when considering the positive deception issue. However, it was ascertained for R & M s case that the agents for the applications did not visit the property and relied on information and plans supplied by their clients Mr Adal Khan and Mr Adam Carter. The information in the applications on the existing use is not reliable, although the possibility that the existing lawful use was intended to be shown cannot be ruled out. The omission in first registering the flats for Council tax when they were managed by Mr Adal Khan was corrected in part when the matter was pursued by R & M for flats 1, 3, 5 and 6(6A) in 2013/2014. Having regard to the particular circumstances Council tax registration is a neutral factor in deciding when the property was converted to flats. In view of the likely transient nature of the tenants the failure of occupants to register for election purposes is not significant. 35. On the balance of probability my initial conclusion, based primarily on the evidence of behalf of R & M, is that the property was converted into seven flats by late 2008/early 2009, with a later subdivision of flats 6 and 7 a year or so later. However, as Ms Seal pointed out on behalf of Mr Adal Khan, even with a second conversion 4 years of continual residential use still can be established before 1 October I now turn to the evidence on the individual flats. Flats 1, 3, 4, 5 and 6a (Appeals by R & M and Mr Adal Khan) 36. Flat 1. Mr Shaukat referred to an attempt immediately after its purchase in 2008 to reduce the size of the flat in order to increase the size of the adjacent office unit but the space was regained shortly after. He confirmed that the flat has existed in its current form since January Foxton s confirmed they were first instructed on this flat on 7 January In the marketing details the floor plan with 2 bedrooms corresponds to the current size. An EPC is dated 14 January 2009, which when taken at its face value also indicates the existence of a flat, even if not its occupation. The one inconsistency is the Land Registry official copy of title plan, where the flat appears not to include a second smaller bedroom The elector recorded in 2011 was at the address described as the Durham Arms. 11 Title number AGL Appendix 7 to Mr Cain s proof. 8

9 37. A series of tenancy agreements span the period from 1 March 2009 until 29 September The agreements submitted by R & M are signed and complete. The first tenancy agreement in respect of Mr S Hussain was between 1 March 2009 and 28 March There are documents with his address as flat 1. The supporting information (including a letter from British Gas dated 27 November 2009 setting up a new account and a first gas bill) indicate that first occupancy might have occurred during the latter half of the year. 38. Subsequently a series of tenancy agreements are in the names of Ms Lang and Mr Bell. These tenants have made statutory declarations dated 20 May 2014 confirming that they occupied the flat under a tenancy from 14 March 2010 a period of more than 4 years. No plan is attached to the declarations to identify the flat concerned. However, the good character of these tenants, more particularly Ms Lang, is supported by references and other documents. Bank statements show regular rent payments were made by Mr Bell. There is no significant contrary evidence. 39. There is the evidence to show that on the balance of probability physical works to create the self-contained flat were carried out by January The residential use of the flat commenced around mid 2009 and subsequently continued for at least a four year period without significant interruption. 40. Flat 3. A series of tenancy agreements submitted by R & M covers the period from 31 January 2009 to 16 September The agreements are signed and complete, except the agreement dated 3 April However, the tenant (Mr Weikart) has made a statutory declaration confirming he occupied the flat (referred to as a ground floor flat) between 13 April 2012 and 12 April There are also statutory declarations from the tenant occupying the flat between 31 January 2009 and 9 April 2010 and the two tenants in the flat from 16 September 2013 to at least 8 July 2014 (the date of declaration). There is additional utility information regarding the first tenancy. 41. The Foxtons letter confirms the agency was first instructed on flat 3 in January 2009 and an instruction to exchange refers to a tenancy commencing on 29 June A marketing brochure shows a floor plan that is equivalent to the existing layout 12. The plan to the official copy of register of title also reflects the same layout 13. Bank statements show rent payments commencing 29 January 2009 and extending over at least a four year period. Mr Shaukat has detailed tenancy extensions and dates of vacations over the period April 2010 to September An EPC, with an address of Flat 3, is for a mid floor flat and therefore cannot apply to this particular ground floor flat. 42. The evidence submitted by Mr Adal Khan is much more limited, primarily comprising the title pages of a series of tenancy agreements. There is a discrepancy in respect of the tenancy agreement for Miss Mendez and Mr O Connor dated 12 August This is insignificant when compared to the amount of evidence on the occupation of this flat by R & M and is not sufficient to conclude that those tenancy agreements have been falsified. 43. I conclude on the balance of probability physical works to create the selfcontained flat were carried out by January The residential use of the flat 12 The brochure in Mr Shaukat s appendix 14 is undated but a brochure with the same details in Mr Barron s Appendices has a date of 2013 written at the top. 13 Title number AGL230261, Appendix 7 to Mr Cain s proof 9

10 commenced around end of January/February 2009 and subsequently continued for at least a four year period without significant interruption. 44. Flat 4. There are tenancy agreements covering a period starting on 29 January 2009 to 14 May 2015 (the last agreement being dated 15 May 2014). One of the agreements submitted by R & M (by a Mr Moore dated 21 March 2013) is unsigned but there is a second agreement for this tenant dated 18 March 2013 that is signed. The additional documentation associated with the first tenant supports a conclusion that the flat existed and was occupied from at least 28 July 2009, the date of the first gas billing period. The first rental payment for the flat appears in the bank statements on 1 April Rental payments from the various tenants are recorded in the bank statements. 45. On the balance of probability, physical works to create the self-contained flat were carried out by January The combined information of the tenancy agreements and bank statements are sufficient to demonstrate the residential use of the flat commenced some time around mid 2009 and the use then continued for at least four years after without significant interruption. 46. Flat 5. The evidence on Flat 5 is not extensive. However, Foxtons were instructed to market the flat in January 2009 and received references for the tenant to move in on 1 February The tenancy agreement is partially signed and the bank statement details indicate that the first payment by the tenant was made in April Thereafter the tenancy appears not to have run its full term and a new tenant was secured in October The subsequent series of tenancy agreements cover a period to 27 February 2015 (and beyond) 14. The tenancies identified in the agreements are supported by the bank statement information through to October Even though not all monthly payments can be identified there is sufficient information to suggest the tenancies were taken up. Mr Cain accepted in cross examination that there was a four year period of occupancy of flat 5 when the tenancy agreements and the bank statement information are read together. 47. On the balance of probability, physical works to create the self-contained flat were carried out by January The residential use of the flat commenced through first occupation during the early months of 2009 and thereafter the use continued without a significant gap over at least a four year period such that during this time it was open to the Council to enforce against the development. 48. Flat 6A. Foxton s confirmed that marketing instructions for Flat 6A were received on 22 January The first let appears to have been short term between 24 March 2010 and 7 May 2010 but no tenancy agreement has been submitted 15. Most of the documentation concerns the tenancy of Mr Jordan. A tenancy agreement dated 11 September 2012 is not clear over the term 16. However, in a statutory declaration Mr Jordan confirmed he occupied flat 6A from 12 June 2010 to 12 April This document is significant evidence on 14 A gap in the agreements between April 2011 and April 2012 is covered by the documents submitted by Mr Adal Khan. 15 Appendices 24 and 25 to Mr Shaukat s rebuttal (although the dated 24 June 2010 refers to flat 6A being on the first floor) 16 It states a term of 12 months from noon 12 September 2012 and expiring noon 11 September I also note that Mr Jordan s signature on the agreements dated 11 September 2011 and 11 September 2012 is not the same as the signature on the statutory declaration. 10

11 occupation and use over this period. Also the rental payments are shown in the bank statements by R & M to 11 September 2012 and in the bank statements submitted by Mr Adal Khan through to March Subsequently R & M obtained a court order dated 24 February 2015 for eviction of a tenant, after a legal dispute with Mr Adal Khan On the balance of probability, physical works to create the self-contained flat were carried out the end of January The best available evidence shows that there was residential use of the flat over a continuous period from June 2010 to April Even after the end of the period of occupation and use by Mr Jordan, the residential use as a self-contained flat continued to at least October 2014, during which time it was open to the Council to enforce against the development. Flats 2, 6, 7 and 7A (Appeals by Mr Adal Khan and the Bank) 50. Flat 2. It was not possible to see inside this flat on the appeal site visit and the Council was unable to do so on its visit in July The Bank provided a lease for Flat 2C dated 13 October 2008 between Carrington Sears Limited and Alia Khan. The lease was unregistered against the freehold title. The attached floor plan shows the flat to have 2 bedrooms, encroaching into space now within flat 3. The valuation report dated 29 September 2008 (property address on the report being Flat 2C) described the accommodation as a 2 bedroom ground floor converted flat with a gross external floor area of 75 m 2. The floor plan submitted by Mr Barron shows a smaller studio flat. An EPC dated 14 January 2009 for Flat 2 describes a ground floor flat with a floor area of 31 m 2, although because of the variations in flat numbering there is no certainty the EPC relates to flat 2. The layout plans that are available provide no indication of the facilities in the flat. 51. Clearly there are inconsistencies between the floor plans for flat 2. The larger flat is described in earlier documentation, with a smaller flat indicated in later documentation. The existing floor plans in the 2009 application, the structure of the building, the position of the chimney, main staircase and a skylight, all indicate a more logical subdivision would result in a smaller flat 2 and a more spacious flat 3, as exists now. The Council was of a similar opinion. A considerable amount of building work would be required to reconfigure the flats. There is good evidence that flat 3 was occupied from around January 2009 and had its existing plan form at that time. The probability is that flat 2 in its current physical form was created by January Mr Adal Khan submitted a series of 7 tenancy agreements covering the period 23 January 2009 to 10 October Four of the documents consist only of the title page and are unsigned. However, the bank statements itemising the rental payments from the tenants provide credibility to these tenancies, albeit there are instances where payment was irregular. In particular a significant gap occurred between December 2012 and June 2013 when the flat was in the tenancy of Ms Ezekiel. In cross examination Mr Cain accepted it was possible that the tenant occupied the flat without paying rent. This is not a very satisfactory explanation but possible. However, account also has to be taken of the existence of the flat, the previous tenancies and occupancy and the improbability that the residential use ceased. In my view there would have 17 Appendices 2 and 8 to Mr Shaukat s rebuttal. In Appendix 2 the flat is identified as flat 3b. 11

12 been the opportunity for the Council to enforce against the material change of use to a self-contained flat within a four year period starting from the end of January 2009 or shortly thereafter with the first occupation of the unit. There is sufficient evidence to demonstrate continuity of use over at least a four year period. 53. Flat 6. The set of incomplete tenancy agreements span the period 27 March 2010 to 30 July There is no tenancy information to show the flat existed and was in residential use prior to that date. This absence of evidence does not support Mr Adal Kahn s case that the property was subdivided into 9 flats in On their own the tenancy agreements would be insufficient to demonstrate continuity of residential use or even occupation by the named tenant. Supplementary evidence was provided by the bank statement details. 54. There is consistency between the named tenant and the entries in the statements, except in respect of Ms Browne/ L Taschler 18. It appears that the tenancy agreement for L Taschler for flat 6 was not taken up. The chronology of rental payments shows regularity in the monthly payments apart from 2 significant breaks. The first is at the beginning of the alleged tenancy of Ms Kotan. The second, longer gap from March 2013 to September 2013 is at the end of that tenancy period. No specific reason is given, although it partly ties in with Ms Kotan moving from flat 6 to flat 7. Her rental payments for flat 7 commenced on 1 July The gap in tenancies between Ms Kotan and the next named tenant Mr Thornhill was just over a month between the end of June and 1 August Marketing and redecoration could be a reasonable explanation. Mr Thornhill is said to have paid rents over the period from October 2013 to July 2014 by cash to Mr Shaukat, which may well be the case even though no receipts have been provided. There is no evidence of occupation post July When the evidence is considered in the round, I conclude that the material change of use probably took place around March/April 2010 and there was subsequently a four year period when the use as a self-contained flat continued without significant interruption. 57. Flat 7. There are similar issues to those in respect of flat 6. The incomplete tenancy agreements have to be read in conjunction with the data on rental payments. On the basis of that evidence occupation began around May/June 2009, with the tenancy of Ms Braun and Ms Knox that lasted through to August The subsequent tenancy (commencing 19 August 2010) had a notably lower rent ( 907 compared to 1,228). There is then a gap of around 2 months before the rent of the next tenant (Para Menko) is recorded 19. Thereafter the bank statement information shows no significant discrepancies over the period beginning with the tenancy of Ms Guelfi in February 2012 to the tenancy of Mr Medina to October 2014 (and beyond), although a tenancy agreement for Mr Medina has not been submitted. Mr Cain in his oral evidence raised no concerns about this period. 18 A tenancy agreement dated 28 March 2011 for a term of 12 months is inconsistent with information regarding the tenant Ms Browne. Mr Taschler has a tenancy agreement for Flat 7a for the period 2 June 2011 to 1 June The term of the tenancy is incorrectly stated as 6 August 2013 to 5 August 2012 and is inconsistent with date of the tenancy agreement (6 May 2011) and the recorded payments. 12

13 58. Interestingly, unlike with the position with flats 6 and 6A, this evidence does not relate very satisfactorily to a subdivision of the flat around March Based on the tenancy of Ms Braun and Ms Knox, the date appears to be a little later in the year which would fit with the information available for flat 7A. Even so, there is sufficient evidence to show on the balance of probability there was at least a four year period when the use continued as a self-contained flat. 59. Flat 7A. The tenancy agreements span the period from 5 July 2010 to 2 August The documented records of rental payments are incomplete. The first tenant is said to have paid in cash. The payments recorded by the second tenant are generally of low amounts (as low as 25) with no explanation given for this. However, the tenancy appears to overlap with that of L Taschler, where a sizeable sum is recorded in November There is a signed agreement for P Simko (term of 5 January 2012 to 4 January 2013) but recorded payments are not regular or cover the whole term. It was said cash payments may have been made but there are no receipts. According to the tenancy agreement the next tenant was Mr Bigoni with a term from 3 August 2013 to 2 August The recorded rental payments cover the period November 2013 to April The next tenant is stated to be Ms Morris but no tenancy agreement was submitted and the recorded payments are not specifically linked to Flat 7A. 60. The lease and survey documents submitted by the Bank date to October 2008 and September The likelihood is that the existing smaller flat was created during the first half of The discrepancies in the names on the lease and recorded in the Land Registry document have no significant bearing on the existence and use of the flat for planning purposes The evidence on occupation of the flat over a four year period is not complete. However, use not occupation is the key consideration. There is no evidence of a different use and it is unlikely the residential use was dormant. There is sufficient evidence to demonstrate the use of this part of the building as a selfcontained flat over the relevant period during which time the Council could have enforced against the development. Overall conclusion 62. On the balance of probability, the material change of use of the property to nine self-contained flats occurred before 1 October The use of each selfcontained flat continued without significant interruption thereafter throughout at least a four year period. The development is immune from enforcement action and therefore lawful provided that positive deception in matters integral to the planning process has not taken place, the subject of the second main issue. 63. As a matter of fact the Council s primary case was based on positive deception. Furthermore, when the strands of evidence were linked and explored through cross examination the Council s witness accepted that the five flats in R & M s appeal had been in continuous use throughout a 4 year period as a minimum 21. There is nothing positive or substantial in the Council s evidence to lead me to have any doubt over my overall conclusion. 20 See Mr Cain s proof at paragraph For the record, Mr Cain agreed that there was a picture of 9 flats throughout a minimum 4 year period, although when this was picked up he explained he thought a figure of 5 flats had been put to him. 13

14 Concealment/positive deception 64. The four year statutory period was conceived as a period during which a planning authority would normally be expected to discover an unlawful change of use to a dwelling house, after which the general interest in proper planning should yield and the status quo prevail. The Supreme Court in the Welwyn Hatfield case concluded that positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale The Welwyn Hatfield judgement identified four features which would deprive the appellant(s) of the benefit of the four year limitation period in section 171B(2): there was positive deception in matters integral to the planning process; that deception was directly intended to undermine the planning process; it did undermine that process; and the wrong-doer would profit directly from the deception if the normal limitation period were to enable him to resist enforcement. 66. Subsequently Jackson indicated that it was not necessary to go further by applying an exceptionality test or considering whether the conduct had been truly egregious. Recognising a spectrum of wrongdoing, the judgement also established that it does not follow that all the features present in the Welwyn case should be treated as necessary requirements to take a case outside the scope of s171b the decision is fact sensitive The period under consideration is from when Mr Adal Khan acquired the property in The Council considered Mr Adal Khan s behaviour was characterised by the same four features seen in Welwyn and that he was primarily responsible for concealment of the breach of planning control and deception. The Council relied primarily on matters directly connected with the 2009 and 2011 planning applications, the method of payment of Council tax and the existence of an indemnity insurance. Planning applications 68. The 2009 planning application form contained inaccuracies in the answers to questions relating to the description of the existing use, the number of existing residential units and in respect of ownership certificate A. In addition, the design and access statement, in the schedule of existing accommodation, made no reference to flats. The plans (existing) showed the pub occupying the whole of the ground floor and no flats on the upper floors. 69. The 2011 application described the existing use of the site as pub and vacant plot, the pub use ceasing 4 years ago. The existing housing accommodation was said to consist of 3 units (1x1 bed flat, 1x2 bed flat and 1x4+ bed flat). The design and access statement referred to three self-contained flats on the upper levels. The statement also briefly explained why the approved scheme 22 Welwyn Hatfield op cit paragraph Jackson v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin) paragraphs 35, 36 and

15 would be difficult to market and how improvements would be achieved through the new proposal. 70. Clearly in both applications there were inaccuracies in the descriptions of the existing property and no indication that the property had been converted into 9 self-contained flats. The balance of the evidence indicates Mr Adal Khan was fully aware of the content of the 2009 application, even though Mr Shaukat was named as the applicant. According to Mr Barron, the agent (Chris Dyson Architects) stated that he had never visited the property and the application was made on the basis of the drawings given to him by Mr Adal Khan. There is a possibility that the existing use was intended to describe the existing use, as suggested by Mr Butterworth, but the failure to refer to conversion of the property to flats was a significant omission. 71. Similarly with the 2011 application, Mr Barron confirmed with the agent that he did not visit the site and worked to drawings given to him by his client, Mr Carter who was in fact Mr Adal Khan 24. In the subsequent appeal there appears to have been no change to the descriptions in the documentation. The inspector in his decision described the appeal site as comprising a disused public house. 72. Balanced against these factors, the flat conversions proposed in the 2009 and 2011 applications had not already occurred. Mr Cain emphasised in his evidence that the 2009 scheme was not implemented. It is also relevant that prior to the submission of the 2009 application there had been pre-application discussions with the Council and an earlier application was withdrawn in November It appears that the two applications were reasonable attempts to gain planning permission for new development. Furthermore, there is nothing to suggest that the developments proposed in the two applications were with a view to carrying out a different form of development with the intention to mislead or deceive the Council. 25 To the contrary the planning applications drew the property to the attention of the Council, consultees and members of the public. In fact, the 2011 application indicated that unauthorised subdivision of the upper levels of residential accommodation had taken place. There is no record of an attempt by the Council to question or investigate the matter further. 73. At the times when the planning applications were under consideration by the Council there was no attempt to conceal the conversion from inspection. The fact that Council planning officers did not see inside the building was because they did not request to do so, rather than officers being denied access into the building by Mr Khan or his agents. The submission of an appeal in 2011 provided the opportunity for an inspector to ask to see inside the property. The appeal decision does not suggest that the inspector was denied access. Mr Adal Khan maintained the inspector was invited into the building but that the inspector declined, saying that he had seen enough and then went to the neighbouring property. The appellant could not have predicted with any certainty the approach that would be taken by either the planning officers from the local planning authority or the appeal inspector. 24 Mr Cain produced evidence from records obtained from Companies House that show that Adam Carter and Adal Kahn are separate legal persons. 25 Welwyn Hatfield paragraph 58: there was positive deception in the making and obtaining of fraudulent planning applications, which was directly designed to avoid enforcement action within a four year period. 15

16 74. A troubling aspect is the claim by Mr Adal Khan in his oral evidence that when the 2009 application was under consideration by the Council the case officer visited the inside of the property accompanied by himself and Mr Shaukat. When this evidence was investigated by the Council, it was found to be incorrect. However, this attempt to apparently mislead the Inquiry had no direct effect on the Council s ability to issue an enforcement notice. 75. In summary, my interpretation of the evidence on the 2009 and 2011 applications is very different to that of the Council. The errors and omissions fall short of positive deception. Council tax 76. Until 2013 there was one assessment for the property for Council tax purposes 26. The landlord was responsible for the payment of Council tax and the rent was said to make provision for this 27. Mr Adal Khan explained that the smaller units were difficult to let and for this reason the Council tax was included as part of the rent. The Council submitted that this arrangement facilitated and was part of the continuing deception. As a result of R & M s intervention, flats 1 to 7 were recorded on the Council tax registration list with effect from 1 October The small size of the flats was independently assessed as being a negative marketing point. However, in June 2010 a tenant was informed in writing that the landlord agreed to meet the costs of the Council tax because he was afforded a discount in respect of the commercial office element. Mr Khan s explanation is not consistent with this written documentation. 78. Notwithstanding this discrepancy, in the Welwyn Hatfield case the omission to pay Council tax was found not to bear directly on the planning process. The situation here is not exactly the same because the property at No. 408 was registered for Council tax purposes. I am not persuaded that the arrangement made by Mr Adal Khan was directed at deceit within the planning process. Furthermore R & M made efforts to ensure their flats were individually banded within the 4 year period they rely on. 79. All matters considered, the act of omission in respect of Council tax has little weight as an indicator in demonstrating positive deception in the planning process. Indemnity insurance policy 80. No copy of the policy was contained within the evidence and consequently the provisions of the policy, if it exists, have not been confirmed. This position does not assist in assessment of the significance of a policy. However I was informed that the taking out of an indemnity insurance policy is common practice where there is no evidence of planning permission. With reference to the Bank s submissions, such a policy is a requirement of any lender in accordance with the CML [Council for Mortgage Lenders] handbook. 26 Information from Tower Hamlets Resources Directorate appendix 15 to Mr Shaukat s rebuttal statement. 27 This arrangement was documented in the tenancy agreement for flat 4 commencing on 29 January 2009 and in the statutory declarations by Ms Lang flat 1 and Niko Fischer flat The Council s evidence is that the flats registered were numbered 1, 2, 3, 4, 5, 6, 7 table in paragraph 4.23 of Mr Cain s proof. 16

17 81. I conclude that this type of policy would not bear directly on the planning process and lends little support to the claim of positive deception. Other factors/evidence 82. The property is in a prominent inner city location, where a number of neighbouring occupiers live, work and overlook the site. The ability to carry out the conversion works without detection would be very small and there is no evidence that the works were concealed. The presence of skips, deliveries of materials and fixtures, workmen, disturbance and so on could easily have prompted reports to the Council. 83. After completion of the conversion works a lot of people, unconnected with Mr Khan or his agents, would have known about the flats. The flats were openly marketed and publicised through well known estate agencies and property companies. Energy performance certificates were obtained, requiring internal inspection by independent surveyors. Requests for mortgages were made, leading to internal inspections of the flats for valuation purposes. Leasehold interests were registered within the four year period and therefore were a matter of public record, open to inspection by the Council. There were numerous tenants. According to the Council the property was listed for sale by auction in February 2012 with Allsops and Rightmove with the benefit of nine flats each held under 125 year leases. 29 Rubbish collection was organised with a company Cory Environmental and in 2011 the Council investigated complaints about the storage of rubbish bags. Minor physical features, such as satellite dish aerials and key entry pads, were visible from the street. Even though there were no obvious letter boxes, it would not be unusual for the flats to be served by a single communal mailbox. 84. These considerations are not consistent with a deliberate act of concealment to implement a strategy of positive deception or even to keep a low profile. There is no suggestion of any positive steps taken to disguise the breach of planning control. The fact that Mr Adal Khan did not bring forward statutory declarations from former tenants as part of his case is not to be categorised as concealment. An effect of the failure to do so potentially would be to weaken his case on the ground (d) appeal. R & M 85. According to Mr Shaukat, R & M acquired their flats on the basis of a statutory declaration by Mr Adal Kahn to the effect that the upper floors of the property had been used as residential flats for more than 10 years at the time of his purchase of the property in May The ground floor was described as a closed pubic house. It should have been clear to R & M at the outset that at the least their ground floor flats did not have the benefit of planning permission. Over the period 2009 to 2013 R & M relied on Mr Adal Khan to manage their flats. It appears they made no attempt to check the planning position and initially they were content to potentially benefit financially from their buy to let investment. 86. However, the probability is that R & M had no knowledge of the 2009 and 2011 applications and as a matter of fact certificate A indicated no notice was served 29 Mr Cain s proof of evidence paragraph

18 on them in Their flats were openly marketed from 2009 and They later made positive attempts to establish the lawfulness of their flats through the LDC applications and to have them banded for Council tax purposes at a time when they could not rely on the flats being immune from enforcement action. At no time did they deliberately conceal their flats. Conclusions 87. The statutory scheme precludes any sort of broad principle to the effect that no one guilty of wrongdoing can be allowed to benefit from the limitation provisions of the 1990 Act. Whether there has been deception is a fact sensitive question. A spectrum of wrongdoing exists, ranging from cases where a developer is simply unaware of the need for planning permission to at the other extreme those who carry out a deliberate, elaborate and sustained plan to deceive the Council from first to last 30. The issue is whether there has been behaviour sufficient to take the breach of planning control at No. 408 outside the time limit in section 171B. 88. Mr Adal Khan s conduct has been shown to have been misleading. In particular there was no specific attempt to bring the material change of use of the property and the existence of the nine flats to the attention of the local planning authority. However, I do not agree with the Council that the 2009 and 2010 planning applications were tools of deception. The evidence does not demonstrate the development was deliberately concealed or that Mr Khan deliberately planned a course of deception designed to circumvent planning control and escape enforcement. Having weighed up all the considerations as set out above I conclude that Mr Khan s wrongdoing within the planning process falls within the spectrum allowed for by the statutory scheme. 89. Following on from that conclusion it cannot be the case that R & M were involved in a joint enterprise of deception associated with Mr Adal Khan. Their initial failure to establish the lawfulness of the flats they purchased and lack of awareness of the position are not sufficient to take them outside the scope of s171b. 90. The Council latterly argued that the Bank, by adopting the evidence of the coappellants, was seeking to rely on deception in the planning process. In view of my conclusion on the facts of the case that no positive deception took place, there is no question of the Bank being party to or benefitting from deception in respect of its property interests at No I conclude that there was no concealment of the change of use of the property to nine self-contained flats by positive deception in matters integral to the planning process. The Welwyn principle is not engaged and the appellants are not deprived of the benefit of the four year limitation period in section 171B(2). Conclusion 92. For the reasons given above, and with specific reference to my conclusions on the two main issues, the nine self-contained flats have gained immunity from enforcement action by the passage of time and are lawful. The appeals by R & M, Mr Adal Khan and the Bank should succeed on ground (d). Accordingly the enforcement notice, as corrected, will be quashed. In these circumstances the 30 Welwyn Hatfield op cit paragraph

19 appeals under the grounds (f) and (g) set out in section 174(2) to the 1990 Act as amended do not need to be considered. DECISIONS Appeal Ref. APP/E5900/C/14/ The enforcement notice is corrected in section 2 by inserting after the post code the phrase as outlined in red on the attached plan and by the substitution of the plan annexed to this decision for the plan attached to the enforcement notice. Subject to these corrections the appeal is allowed and the enforcement notice is quashed. Appeal Ref. APP/E5900/C/14/ The enforcement notice is corrected in section 2 by inserting after the post code the phrase as outlined in red on the attached plan and by the substitution of the plan annexed to this decision for the plan attached to the enforcement notice. Subject to these corrections the appeal is allowed and the enforcement notice is quashed. Appeal Refs. APP/E5900/C/14/ , , , The enforcement notice is corrected in section 2 by inserting after the post code the phrase as outlined in red on the attached plan and by the substitution of the plan annexed to this decision for the plan attached to the enforcement notice. Subject to these corrections the appeals are allowed and the enforcement notice is quashed. Appeal Ref. APP/E5099/C/14/ The enforcement notice is corrected in section 2 by inserting after the post code the phrase as outlined in red on the attached plan and by the substitution of the plan annexed to this decision for the plan attached to the enforcement notice. Subject to these corrections the appeal is allowed and the enforcement notice is quashed. Appeal Ref. APP/E5900/C/14/ This appeal requires no action to be taken because of the appellant s withdrawal from the proceedings. Diane Lewis Inspector 19

20 APPEARANCES FOR THE APPELLANT MR ADAL KHAN: Ms Philippa Seal of Counsel She called Mr Jeremy Butterworth J Butterworth Planning Ltd BSc(Hons) MA MRTPI Mr Adal Khan The Appellant FOR THE APPELLANTS MRS RIZWANA KHAN AND MR MAJID KHAN: Mr Daniel Stedman Jones of Counsel He called Mr James Barron Barron Planning Consultancy BA(Hons) DipTP MRTPI Mr Sajaid Shaukat Manager of Flats 1, 3, 4, 5, 6A FOR THE APPELLANT BANK OF SCOTLAND plc: Mr Benjamin Fowler of Counsel FOR THE LOCAL PLANNING AUTHORITY: Mr Simon Pickles of Counsel Instructed by the Head of Legal Services He called Mr Richard Cain BSc MA Former planning enforcement officer with the LPA, now senior planning officer at Bracknell Forest Council DOCUMENTS submitted at the inquiry 1 Letter of notification of the appeal and of the inquiry and list of people notified 2 Amended Appendix 8 to Mr Cain s proof of evidence 3 Summary of points of Mr Cain s proof of evidence 4 Summary of proof of evidence, Mr Barron 5 Rebuttal statement summary Mr Shaukat 6 Opening submissions of Rizwana and Majid Khan 7 Opening statement of the Bank of Scotland plc 8 Opening submissions on behalf of the Council of the London Borough of Tower Hamlets 9 Amended plan to the enforcement notice 10 Statutory declaration re Flat 6A 11 correspondence Mr Butterworth s exhibit Bank statements submitted by Mr Adal Khan 13 Chronology of tenancy agreements & payments flats 2, 6, 7 and 7A submitted by Mr Adal Khan 14 Mr Cain Summary of points for evidence in chief 15 Note submitted by the LPA in response to evidence of Mr Adal Khan 16 Closing submissions on behalf of the Council 20

21 17 Closing submissions on behalf of Mr Adal Khan 18 Closing statement of the Bank of Scotland plc 19 Swale Borough Council v First Secretary of State & Roger Lee [2005] EWCA Civ 1568 submitted by the Bank of Scotland plc 20 Closing submissions of Rizwana and Majid Khan 21 Witness statement of Mr Adal Khan Claim No. A1QZ3655 submitted by Rizwana and Majid Khan 22 correspondence submitted on behalf of Rizwana Khan and Majid Khan. 21

22 Plan This is the plan referred to in my decision dated: By Diane Lewis BA(Hons) MCD MA LLM MRTPI Land at: 408 Hackney Road, London E2 7AP Refs: APP/E5900/C/14/ , , , , , ,