Inquiry held on 14, 15, 16 and 17 November 2017 and 18 January 2018 Site visit made on 22 November 2017

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1 Appeal Decision Inquiry held on 14, 15, 16 and 17 November 2017 and 18 January 2018 Site visit made on 22 November 2017 by Gloria McFarlane LLB(Hons) BA(Hons) Solicitor (Non-practising) an Inspector appointed by the Secretary of State Decision date: 13 February 2018 Appeal Ref: APP/X5990/C/17/ Inverness Terrace, London, W2 3HU The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act The appeal is made by Inverness Property Limited against an enforcement notice issued by the Council of the City of Westminster. The enforcement notice, reference DELENF 16/62217/U, was issued on 14 February The breach of planning control as alleged in the notice is without planning permission and within the last 10 years, in the parts of the property outlined in red in plans 1-6, an unauthorised material change of use of the Property from a hostel or hostel-type accommodation serving a clientele seeking affordable living accommodation to use as a (sic) serviced residential apartments operating on the open-market, in effect a form of hotel use. The requirements of the notice are to cease the unauthorised use of the following parts of 8-18 Inverness Terrace, London, W2 3HU as serviced apartments, ie a hotel-type use with rooms rented out at market rates on a commercial basis. The Lower Ground Floor as outlined in red Plan 1 The Ground Floor united (sic) 015, 016, 017, 018, 019, 020, 021, 022, 023, 024, 025, 026 as outlined in red on Plan 2 The First Floor unit 119 as outlined in red on Plan 3 The Second Floor as outlined in red on Plan 4 The Third Floor as outlined in red on Plan 5 The Fourth Floor as outlined in red on Plan 6 The period for compliance with the requirements is three months. The appeal is proceeding on the grounds set out in section 174(2)(a), (b), (c ), (d), (f) and (g) of the Town and Country Planning Act 1990 as amended. Summary of Decision: The enforcement notice is quashed. Application for costs 1. At the Inquiry applications for costs were made by the Council against the Appellant and by the Appellant against the Council. These applications are the subjects of separate Decisions. The appeal site 2. The appeal site comprises six bays of Inverness Terrace and each bay has five storeys above a basement. The site is located towards the southern end of Inverness Terrace near Queensway underground station and the north-western boundary of Hyde Park. The building dates from the 19 th century, is Grade II listed and is within the Bayswater Conservation Area. There are 122 units in

2 total at the appeal site operated under the name of Hyde Park Executive Apartments. These include the 90 units which are the subject of the notice and which offer short term accommodation, primarily to tourists. The remaining 32 units are long term lets and are not the subject of the notice. 3. The access for all occupiers, either short or long stay, is through No 12 and the reception area. Each unit has a kitchenette area with, among other things, a microwave oven, a ceramic hob, a fridge/freezer and kitchen utensils; a sitting/sleeping area with a TV; and en-suite shower room. There are no communal kitchens or bar/dining room facilities but there is a communal laundry on the third floor. The Notice 4. The Appellant submits that the notice is so defective that it must be quashed. The reasons for this submission include a failure to identify the correct planning unit and a flawed allegation. 5. The Courts have established that in order to determine whether there has been a material change of use, the local planning authority must first identify the planning unit 1. The planning unit identified in the notice is described in part 2 under the heading the land affected as The building(s) and associated land at Hyde Park Executive Apartments, 8-18 Inverness Terrace, London W2 3HU shown edged red on the attached plan. The attached plan is a site location plan with a red line around the footprint of Nos The Council points out that there is no legal obligation for the requirements of the notice to cover the entirety of the relevant planning unit. Regulation 4 of the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 simply requires that the notice specify the precise boundaries of the land to which it relates. Nonetheless, in this case the Council maintains that the entire property is one single planning unit and the land affected by the notice corresponds with the whole planning unit. 7. The notice therefore has been served against the whole property as one planning unit as confirmed by the Council 2. However, the alleged breach of planning control must correctly reflect what has been done wrong even if the requirements of the notice do not encompass the whole of the planning unit. 8. The concept of the planning unit is one that has evolved as a means of determining the most appropriate physical area against which to assess the materiality of change 3. Thus the material change of use must be assessed in relation to the whole planning unit. In this case the allegation relates to a material change of use of part of the property only, that is, the parts of the property outlined in red in plans 1-6, and the breach of planning control is stated to be the change of use [of those 90 units]from hostel or hostel-type accommodation to a form of hotel use. 9. The Council acknowledges that there are two distinct uses taking place within the property 4 but says there is not sufficient physical or functional separation between the two uses taking place to enable a smaller planning unit to be 1 Johnston Doc X and Doc D paragraph 3 2 The Council s closing submissions Doc C paragraph 6 3 The Encyclopedia of Planning Law P55.44 Doc VII and Doc C paragraph 7 4 Doc B paragraph 9 2

3 identified 5. The Council has identified one planning unit with two uses which Burdle has established is a mixed use, that is, the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to the other. This is well settled in the case of a composite use Having regard to the tests in Burdle, a single planning unit cannot have two separate and distinct main planning purposes unless these fall within the category of a composite use. The Council accepts that the notice relates to the whole of the property but the alleged breach and the requirements only apply to the 90 units. I agree with the Appellant that the allegation is obviously flawed as it only addresses part of the property and does not address the alleged unauthorised mixed use of the whole planning unit. On the basis of the Council s case as put forward at the Inquiry, the allegation would need to have alleged that there had been an unauthorised material change in use from use as a hostel to a mixed use as a hotel and hostel. The allegation therefore requires a correction to a mixed hotel and hostel use of the whole building. 11. The Council acknowledged that there was a mixed use and invited me to correct the allegation, if I felt it appropriate, to a material change of use of the property from use as a sui generis hostel to a mixed use (sui generis) comprising serviced residential apartments (in effect a form of hotel) use of the parts of the property outlined in red in plans 1-6 and hostel use of the remainder However, a notice can only be corrected pursuant to s.176 if no injustice would be caused to the Appellant in so doing. The Council submits that no practical consequences would flow from the correction of the allegation to ensure that the notice properly describes the breach of planning control. However, the correction to a mixed use would widen the scope of the notice to include those parts of the building which are not included in the notice as issued, and are therefore not currently enforced against, and this would necessarily cause injustice to the Appellant. In addition, Ms Sheikh submits, and I concur, that injustice would be caused to the Appellant for a number of reasons which include the following: 13. An appeal on ground (b) is on the basis that the breach of planning control stated in the notice has not occurred as a matter of fact. It was agreed at the Inquiry that, if it was found that the notice was not defective and no correction was made to the allegation, the appeal on ground (b) must fail because as a matter of fact the 90 units were and are in hotel use. The Appellant has confined the ground (b) argument to the matters stated on the notice but if the allegation was corrected to a mixed use the Appellant has been unable in this appeal to give evidence about the use of the 32 units because they are not matters stated in the uncorrected notice; in particular the Appellant did not produce evidence about the use of the remaining 32 units to refute Ms Bartlett s evidence that they were/are in hostel use. 14. The case put by the Appellant in the ground (c) appeal, that is, that the material change of use of the 90 units does not constitute a breach of planning control, is different from one that would have been put in respect of a material 5 Doc B paragraph 5 6 Burdle v SSE Doc X and Doc D paragraph 15 7 Doc C paragraph

4 change of use to a mixed use taking into account the factual situation together with the planning and other matters that have occurred in respect of the property over the years. 15. The nature of the evidence required to prove a ground (d) appeal on immunity from enforcement action in respect of a mixed use would be different from the evidence provided in this appeal which was confined to the use of the 90 units. Given the wording of the allegation it was not necessary for the Appellant to present evidence in respect of the use of the 32 other units which would be required if the allegation related to a mixed use. 16. The deemed application in the ground (a) appeal is for use of the 90 units and only the planning merits of those units can be taken into account; there is no power in this appeal to grant planning permission for the 32 remaining units and to correct the notice to include those units in a mixed use would result in a completely different use of the property which would require different planning considerations and a different planning judgment to be made. 17. There are also implications pursuant to s.173(11) if the allegation is corrected to a mixed use but the requirements are not corrected and continue to apply only against part of the property, that is, the 90 units. The implications were not fully canvassed at the Inquiry but I note Ms Sheikh s opening submission that based on the allegation in the notice the remainder of the property that is not the subject of the requirements must by operation of law be deemed to have been granted planning permission for a hotel use 8. Variations to the notice 18. Before the Inquiry opened the Council suggested variations to the notice that it considered would address the Appellant s concerns in the ground (f) and (g) appeals 9. These were firstly, the deletion of the words operating on the open market from the allegation; secondly the deletion of the words for single homeless people from the reasons for issuing the notice; and thirdly, the deletion of the words with rooms rented out at market rates on a commercial basis from the requirements. As the notice is to be quashed because it is not capable of correction without injustice to the Appellant I consider it is not appropriate to vary the notice, even though these particular deletions may not cause injustice. Conclusions 19. For the reasons given above I conclude that the enforcement notice does not specify with sufficient clarity the alleged breach of planning control and it does not accurately and correctly tell the Appellant what it has done wrong. It is not open to me to correct the error in accordance with my powers under s.176(1)(a) of the 1990 Act as amended since injustice would be caused were I to do so. The enforcement notice is invalid and will be quashed. In these circumstances the appeal under the various grounds (a), (b), (c ), (d), (f) and (g) as set out in s.174(2) of the 1990 Act as amended and the application for planning permission deemed to have been made under s.177(5) of the 1990 Act as amended do not fall to be considered. 8 Doc A paragraph 19 9 Letter dated 10 November

5 Decision 20. The enforcement notice is quashed. Gloria McFarlane Inspector 5

6 APPEARANCES FOR THE APPELLANT Ms S K Sheikh QC Instructed by Ms C Hereward, Pemberton Greenish She called Mr P Villars BA(Hons) MRTPI Mr I Blackwell FCAB MRICS Managing Director, Indigo Planning Director, Building Inspectors Limited FOR THE LOCAL PLANNING AUTHORITY Mr H Phillpot QC Instructed by Ms L Metson, Tri-Borough Shared Legal Services He called Ms V Bartlett BA(Hons) Senior Planning Officer Enforcement Team INTERESTED PERSONS Ms P L Chong Mrs A Fernandes Mr A Gaetjens Local resident Local resident Local resident DOCUMENTS SUBMITTED AT THE INQUIRY Doc 1 - Statement of Common Ground Doc 2 - Letter from Salvation Army dated 22 October 1993, submitted by the Council Doc 3 - Building Notice dated 15 May 2006, submitted by the Council Doc 4 - Plans that accompanied the Building Notice dated 15 May 2006, submitted by the Council Doc 5 - Example Full Plans Notice, submitted by the Council Doc 6 - Appeal Decision APP/X5990/C/11/ (re-determination ) submitted by the Council Doc 7 - Appeal Decision APP/X5990/C/11/ (quashed decision) submitted by the Appellant Doc 8 Statutory declaration of Samuel Donnerstein dated 17 November 2015 with exhibits excluding SD2, submitted by the Appellant Doc 9 Extract from SD2, agreed by the Parties Doc 10 HSW Inspection Report dated 20 August 2010, submitted by the Council Doc 11 Information about hostels in Inverness Terrace, submitted by the Council 6

7 Doc 12 Letter from RPS dated 20 January 2005, submitted by the Council (to be included in PV12) Doc 13 Examples of current long term tenancy agreement, submitted by the Appellant Doc 14 Extract from Hansard dated 14 March 1994, submitted by the Appellant Doc 15 from Aidan Marshall dated 26 May 2017, submitted by the Appellant (to be included in VB22) Doc 16 PCN signed by Mr Benyounesse dated 7 July 2016, submitted by the Appellant Doc 17 s relating to the PCN, submitted by the Appellant Doc 18 Further s relating to the PCN, submitted by the Appellant Doc 19 Letter from the Council to the Appellant dated 10 August 2016, submitted by the Council Doc 20 Letter from the Council to the Appellant dated 4 October 2016, submitted by the Appellant Doc 21 Letter from Mrs Fernandes dated 2 November 2017 Doc 22 from Mr Gaetjens dated 14 November 2017 and photographs Doc 23 - List of suggested conditions Doc 24 Schedule of Ownership, submitted by the Appellant Doc 25 Appellant s comments on the suggested conditions DOCUMENTS SUBMITTED BY THE ADVOCATES AT THE INQUIRY Doc A - Opening submissions on behalf of the Appellant Doc B - Opening submissions on behalf of the Council Doc C Closing Submissions on behalf of the Council Doc D - Closing submissions on behalf of the Appellant AUTHORITIES ETC SUBMITTED AT THE INQUIRY Doc I Mayflower Cambridge Ltd v SSE and Another (1975) 30 P & CR 28, submitted by the Council Doc II Panayi v SSE and Another (1985) 50 P & CR 109, submitted by the Council Doc III - Legal Services Act 2007 s.183 Doc IV - SRA Handbook Code of Conduct Relations with Third Parties, submitted by the Council Doc V - Interpretation Act 1978 Schedule 1, submitted by the Council Doc VI - Commissioners for Oaths Act 1889, submitted by the Council Doc VII - Planning Encylopedia s.55 of the 1990, submitted by the Council Doc VIII - Planning Encylopedia s.56 of the 1990 Act, submitted by the Council Doc IX - Planning Encylopedia Use Classes Order Schedule 1 Part C, 7

8 submitted by the Council Doc X The Appellant s bundle of authorities comprising: 1. Ahmed v SSCLG [2014] EWCA Civ Burdle v SSE [1972] 3 All ER Church Commissioners for England v SSE (1996) 71 P & CR Gravesham BC v SSE (1984) 47 P & CR Gregory v SSE (1990) 60 P & CR Hartley v Minister of Housing and Local Government [1970] 1 QB Iannou v SSCLG [2015] 1 P & CR Impey v SSE (1984) 47 P & CR Jennings Motors Ltd v SSE [1982] QB Johnston v SSE (1974) 28 P & CR R (Peel Land and Property Investments) v Hyndburn BC [2013] EWCA Civ R (Westminster CC) v SSCLG [2015] JPL Stone v SSCLG [2014] EWHC 1456 (Admin) 14.Thomas David (Porthcawl) Ltd v Penybont RDC (1972) 24 P & CR Van Dyck v SSE (1993) 66 P & CR Welwyn Hatfield BC v SSCLG [2011] 2 AC Young v SSE [1983] 3 WLR