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Betting The House

Miles Crawford, an Associate at Fladgate LLP, comments

A High Court ruling that the owners of a detached house in North London do not have to comply with the requirements of a planning enforcement notice issued by Camden Council appears to cast doubt over the effectiveness of enforcement powers available to local authorities. However, is the case an anomaly or does it reveal a potential loophole in the planning system?

The facts
Philip Galway-Cooper, a property lawyer, and his wife constructed a three storey extension at the rear of his property without planning permission. The Council issued an enforcement notice in 2014 requiring it to be removed and the rear wall of the house reinstated to its original condition.  The notice was upheld on appeal. However, after the compliance period expired without the Galway-Coopers having taken any further action, the Council brought criminal proceedings. At the Magistrates Court, the Galway-Coopers argued that it was impossible to comply with the enforcement notice as restoring the wall would not only be prohibitively expensive but also the new extension had been built using a steel frame. Due to the clay foundations under the house, it was not possible to reinstate the original wall in the exact alignment without further underpinning.  The judge agreed and found that they could do nothing further to comply with the enforcement notice, and the Galway-Coopers were acquitted.

The Council then challenged the decision at the High Court and argued that the couple had not done everything that could be reasonably expected of them to comply with the enforcement notice. However, Mr Justice Ouseley dismissed the Council’s challenge based on expert engineering evidence which revealed that the restored wall would in all likelihood fail. The judge further explained that although restoring the wall might not be “a complete and total physical impossibility” it had justifiably been described as “not feasible”. The appeal was dismissed and the Council was ordered to pay the Galway-Coopers’ legal costs in the order of £20,000.

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