England and Wales High Court (Administrative Court) Decisions

10. The written opening statement dated 22 March 2011 on behalf of the appellant included the following:

1. The principal issue for the Inquiry is whether the flats as built are acceptable in terms of height, massing and design, overlooking and overbearing impacts on neighbouring properties. The Appellant's evidence – given by Tony Allen – will show that the development is acceptable in these terms and that evidence will be heard in detail today.

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3. Moreover, whilst the Appellant's evidence will show that the development is acceptable in its own right – and therefore that there is a compelling case for the grant of planning permission on the s 78 appeal – even if that evidence is not accepted it must be asked whether any harm that is said to arise from the development as built would be materially reduced if the enforcement notice was to be upheld. The following critical points indicate that, if anything, the harm arising from the enforcement notice "scheme" would be greater than the retention of the development as built:

a) The enforcement notice scheme would still result in a block of flats of a similar scale, height and massing to the appeal scheme;

b) the enforcement notice scheme would have no control over the appearance of the roof of either the front or rear elements of the building. There would be nothing to ensure that the materials or design would be appropriate in context;

c) the front section of the building would necessarily be of an inappropriate design by the creation of a shallow-pitched roof;

d) the enforcement notice scheme would result in the loss of at least two 2-bedroom flats and the conversion of a 3-bedroom flat to a 2-bedroom flat. It is possible that further accommodation would be lost because the 9.5m height limitation, with a pitched roof in compliance with Building Regulations, may mean that three storeys of residential accommodation could not be accommodated. Further, there will be a loss of accommodation during the extensive building works;

e) There would be no significant change in the impact of the development in terms of overlooking, loss of privacy and other impacts on neighbouring properties.

4. In short the enforcement notice "scheme" is one with no logic to it at all: sacrificing acceptable design for the unknown, creating an unconditioned development and losing at least two homes without any discernible benefit in planning terms. For all those reasons, the s 78/ground (a) appeals should succeed.

Variations to the notice

5. If the ground (a) appeal does not succeed, the Appellant submits that the notice should be varied. The Appellant has sought to raise these issues in its Statement of Case under grounds (f) and (g); the LPA and PINS have resisted "new grounds" of appeal being adduced. However, that approach is wrong in law for the following reasons:

a) There is no restriction on the Inspector entertaining new grounds of appeal at any stage in the process. The only issue is whether any party is prejudiced by their introduction. The LPA is clearly not prejudiced by their introduction as it has been aware of the grounds raised for many months;

b) It is simply wrong for the LPA to rely on regulation 21 of the 2002 Rules as providing a basis for excluding those grounds of appeal. Regulation 21 begins "Where a decision of an inspector on an appeal for which an inquiry has been held is remitted by any court to the Secretary of State for rehearing and redetermination…". This is not such a case: the last Inspector did not hold an Inquiry. The matter has therefore been remitted without any restriction on the matters which can be canvassed as there is no equivalent rule to Regulation 21 in the Town and Country Planning (Enforcement) (Written Representations Procedure) (England) Regulations 2002/2683;

c) Most importantly, the Inspector has a power to vary the terms of the enforcement notice if she is satisfied that the variation will not cause injustice to the Appellant or the LPA: s 176(1)(b). As paragraph P174.11 of the Planning Encyclopaedia notes, grounds (f) and (g) "do not go to the validity of the notice, and excessive or unreasonable requirements may instead be varied by the Secretary of State under s. 176". In other words, there is always a discretion for an Inspector to vary the terms of the notice even if there is no appeal under grounds (f) or (g).

6. The Appellant's evidence will show: (i) that the time for compliance is woefully inadequate and (ii) the requirements of the notice are excessive. The Appellant will invite the Inspector to amend the notice accordingly, should the ground (a) appeal fail.

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11. The proof of evidence of Mr Warden included the following:

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2.1 Background to dispute

2.1.1 Planning permission was granted in 2005 for a scheme of nine flats (reference TP/04/2595). The plan showing the layout, floor plans and elevations of this development is missing from the planning file. This drawing is listed on the decision notice as reference PR/16-18/LAYOUT/A (a copy of this decision notice is provided at Appendix 2). The following three drawings remain in the planning file:

1. PR/16-18/LAYOUT/A dated October 2004 (a copy of this drawing is provided at Appendix 3)

2. PR/16-18/LAYOUT/A dated March 2005 (marked revision 'B' by hand) (a copy of this drawing is provided at Appendix 4)

3. PR/16-18/LAYOUT/B dated June 2005 (a copy of this drawing is provided at Appendix 5)

2.1.2 Each of these drawings is marked by hand superseded by the then case officer, Ms Emma Allenden (see section 2.6 below). The Council has obtained a further plan relating to this application. Initially a copy of this plan was provided by a neighbouring resident and later, in May 2009, I took a copy of the same drawing from the Parkway Developments Limited (the developer of Ashbourne Lodge, which adjoins the appeal site to the east). This drawing is also referenced PR/16-18/LAYOUT/A and dated March 2005 but has the then case officer's hand written notation "TP/04/2595 Revised Plan" (the 'Council's Plan'). A copy of this plan is provided at Appendix 6. I consider, on the balance of probabilities, that it was this plan that went on to become the approved plan for application TP/04/2595. The basis for my conclusion is discussed within sections 2.2 to 2.8 below.

2.1.3 The Appellant has provided another plan, which they claim is the approved plan for application TP/04/2595. Again, this plan is referenced PR/16-18/LAYOUT/A, it is dated May 2005 and the copy most recently provided to the Council, in August 2008, is stamped "PERMISSION GRANTED SUBJECT TO CONDITIONS 31 AUG 2005" (the 'Appellant's Plan'). A copy of this plan is provided at Appendix 6. Notwithstanding this stamp, the Council disputes the authenticity of this plan. The reasons for this are discussed in sections 2.2 to 2.8 below. In light of the evidence below, I consider, on the balance of probabilities, that this is not the approved plan for application TP/04/2595.

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2.2.20 Overall, I find the purported change in the use of this field [a box which on other plans stated "REVISIONS" but on the Appellant's plan stated "SUBMITTED PLANNING DRAWINGS"]part way through the planning application; the absence of the use of this term ["SUBMITTED PLANNING DRAWING"] on any other reported application following an extensive search; and, the past tense of the term itself each suggest that this was not a term added at planning application stage but added sometime later. Having regard to the fact that this plan shows a marking purporting to be the Council's approval stamp, this brings significant question over the authenticity of this drawing.

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2.3.4 The height of the building was not merely a descriptive narrative in the committee report, but was central to the acceptance of the scheme. The Statutory Declaration of the then case officer, Ms Emma Allenden at Appendix 11 states, referring to the 'Council's Plan' "This plan clearly shows the height of the building at 9.5m and this is the height that I specifically referred to in my Committee Report on more than one occasion. The height of the building was the subject of discussions between both Mr Andy Higham and I and Mr Andy Koumis and I where reductions in building height were required to make the scheme acceptable". I do not accept that there was an error in relation to the height of the building within the report to Planning Committee.

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2.4.3 The 'Council's Plan' is marked as a revised plan by the then case officer, as discussed in section 2.2 above, this is the plan that Mr Andy Bennett obtained a copy of as a result of consultation on 17^th August 2005, only 13 days before planning committee. This would have been after the reports to that same committee would have been completed ready for circulation to Members.

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2.6.5 At Appendix 12 I provide the Statutory Declaration Mr Andrew Martin Bennett. Mr Bennett confirms that he provided the Council with a plan in May 2009. Not only is it clear from Mr Bennett's description of this plan that this is the plan that I refer to as the 'Council's Plan', but I myself scanned and copied this plan when it was received from Mr Bennett. Mr Bennett describes how he came to hold this drawing, namely by obtaining a copy from the Council on 24^th August 2005; some 7 days before the Planning Committee meeting. He provides a copy of the receipt, along with the consultation letter dated 17^th August 2005 that prompted him to visit the Council offices. Finally, he provides a copy of the committee report that he obtained from the Council. It is clear from Mr Bennett's account, as well as the documents he still holds, that he closely followed the planning application at the appeal site in 2005. He confirms, however, that, in respect of the 'Appellant's Plan', he had "never seen this drawing" until I sent it to him, which I can confirm was shortly before his letter dated 14^th January 2011. I can also confirm that a review of the Council's records has returned the same receipts provided by Mr Bennett. They are carbon copies and I, therefore, see no need to produce them again in evidence.

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12. Enfield's written closing submissions dated 23 March 2011 included the following:

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The scope of the inquiry

3. The Appellant has already sought to introduce further grounds (g) and (f) and this was refused by PINs.

4. It is submitted by the Appellant that it is wrong to rely on regulation 21 of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 as it is said that the regulation applies only to where a decision of an inspector on an appeal for which an inquiry has been held is remitted. It is said that there was no inquiry in this case and that as there is no equivalent rule in The Regulations for Written Representations, there is no restriction on which matters can be canvassed.

5. It is submitted that it cannot be the intention of those Regulations for Written Representations that there is no restriction on which matters can be canvassed. It cannot be that simply because an appeal is heard by written representations, there is a wider discretion conferred on the Inspector hearing the re-determination.

6. In any event, the scope of the re-determination hearing cannot be decided in the absence of considering the original grounds of appeal or what led to the re-determination inquiry. The original ground of appeal was only ground (a). The reason for re-determination does not give rise to issues of ground (f) or ground (g).

7. Through Mr Warden, the Council does agree that the time limit could be extended to six months. There is no evidence that the Council has obtained to produce to the inquiry because the scope of the appeal did not include ground (g). The evidence is his instructions from a senior manager within Building Control.

8. But there is no new material evidence that has been presented by the Appellant that should persuade the Inspector that the situation is now different. Mr Koumis provides no plans or building regulations to say that the scheme cannot be built and he produces no plans or descriptions of lesser steps. From Perrett [in the Court of Appeal at paragraphs 16 and 17]:

The Secretary of State may decide that it is appropriate to rehear the appeal de novo on the particular ground or grounds that led to the successful appeal to the court. He may decide that other matters should also be dealt with (for example, to consider whether there has been a material change of circumstances, including any change of policy, since the original decision was taken). He is not, however, obliged to approach the whole appeal de novo or to allow a party to open up grounds that were not raised in the appeal to the court. Mitting J found in favour of the Secretary of State on this issue. In my judgment he was right to do so.

9. The Inspector has a discretion but not an obligation. There is nothing new or materially significant that means that discretion should be exercised in this case to widen the scope of the original appeal.

10. If, in the alternative, the Inspector could vary the notice under ground (g) or (f) under s. 176, again, in the submission of the Council, there is no credible evidence on which to base such a variation. The suggestion that it will take until March 2013 to complete the works is exaggerated. There is no reason why work cannot start until June 2012 and there is no reason why it should take 6 months to prepare plans and appoint a contractor. The letter from the one builder approached does not give enough information. As to lesser steps, again, there are no plans put forward to this inquiry to suggest what variations to the Notice could or should be made. It would be prejudicial to the Council if the EN was varied to require lesser steps when there had been no substantive evidence on what those lesser steps could be.

The Plans

Observations on the drawings

11. On the balance of probabilities the plan for which permission was granted was the "Council's Plan" for the following summary of reasons:

a. The date of receipt;

b. The absence of a stamp or marking indicating it is a revised plan;

c. The use of the wrong reference number;

d. The use of the term "Submitted Planning Drawings" that has not been found on any other plan for this site or on any other planning application drawing submitted by this agent at 15 Councils;

e. The absence of the site boundary to the "Prop Second Floor Plan" and "Prop First Floor Plan" and the relative positioning of the OS plan. Such features add clarity to plans and there is no reason to remove them;

f. The lack of dimensioned distances from site boundaries;

g. Notations to elevations;

h. Illustrative detailing;

i. Flat 7 containing only one bedroom when this was an application for 9 x 2 bed scheme;

Observations on the chronology

j. Successive plans reduce the height of the building except the Appellant's plan. The plans go from a height of 11.2m to 10.5m and then to 9.5m

k. The rear projection and gable roof appear on the Appellant's plan only. There is no natural progression of such amendments;

Statutory Declarations and evidence provided by others

l. Mr Forrester, the party wall surveyor, has provided a statutory declaration confirming his correspondence with the Council that he had never seen the "Approved Plan". The Plan that he had on his file was taken by Mr Warden and is produced at Appendix 14. It is not the plan that purports to be the Approved plan even though Mr Forrester was engaged in January 2006 some months after planning permission had been granted;

m. Mr Higham has given evidence that the Appellant's Plan does not accord with his memories of the scheme. He said in oral evidence that some sites "stick in the mind" and that with this one "clearly there were discussions about height" and that what stood out to him was the "shallow pitch of the roof". When asked how sure he was that the Council's plan was the one that went to committee he said "as sure as I can be… the dimensions in the report. Sticks in my mind…no recollection of AGH2. Not what seen or familiar with". What is clear from his evidence is that it is the Council's plan for which permission was granted. In his statutory declaration he confirmed that

…In particular, the 10.5m height annotated on the plan does not accord with the dimension stated twice in the Committee report. Furthermore, the scheme shown on this plan (AJH2) incorporates a much steeper roof profile resulting in a more substantial roof element than I recall from my involvement in the scheme approved under ref TP/04/2595.

In addition, the roof design of the development fronting Hazelwood Lane incorporates gable for the three storey element and my recollection is one of a stepped arrangement with hipped ends at all levels.

From a closer inspection of the plan, the annotation of 6 metres rear of the building to the rear garden boundary with No 11 Park Avenue is missing which also does not accord with my recollection of the approved plan.

n. Mr Bennett gave up his valuable time to give evidence to the inquiry. He was quite clear that he had re-checked his records and he had found the petty cash slips and found that it was on 24^th August that he had obtained the plan. He pointed out that he received the letter from the Council dated 17^th August 2005 about the new plans on 22^nd August and so it made sense that he would have visited the Council 2 days later to look at the plan. He confirmed that he would have looked through the file and he did not see any plans showing the development at 10.5m high. When pressed, he was doubtful that he could have missed it. As between the plan he had obtained from the Council and the Committee report (which he had read) he said that they "tied in very well".

o. Ms Emma Allenden was not available to give oral evidence to the inquiry. As has been explained, she is on maternity leave and is away with her family. She has provided two statutory declarations to the Inquiry and as a result her written evidence is full and provides clear explanations as to her recollection. It is submitted that it is obvious from her evidence that she knew exactly why she was providing a statutory declaration and that there is nothing vague about the evidence she gives. She confirms that

i. She recalls the case well

ii. She had many meetings with the applicant, Mr Andy Koumis, in relation to making amendments to the schemes. In particular, scheme TP/04/2595 had a number of amendments prior to its approval and a number of meetings took place between the applicant and her.

iii. The height of the building was the subject of discussions between Mr Koumis and her where reductions in building height were required to make the scheme acceptable

iv. She does not recall the Appellant's Plan as one that she assessed as part of the determination of the planning application. She does not recognise the writing of the reference number and she would not have written the reference number in that way – it is second nature to write references with letters TP followed by a slash. The plan is different from that assessed due to the appearance of the elevation to Hazelwood Lane which has gable end roofs. She had discussions with Mr Koumis as to the hipped roofs as opposed to gable end roofs in order to resolve the appearance of the proposed building in the street scene. The first floor terrace looks different and she does not recall the irregular shape where the first floor staircase projects or the narrow strip of landscaping.

v. She says that the height at 10.5m is not the height of the proposal that she assessed in the report to planning committee. She says that this was not the revised plan upon which she requested a 14 day period of consultation or the plan that went to planning committee [or] that approved by the Council

vi. She also confirms that she had never seen the letter from Mike Bardy produced by Mr Koumis and that the word "chambers" to describe where meetings took place at the Council stood out to her as very unusual. She does not recall a meeting with Mr Bardy on 9^th May 2005 to discuss the site. She provides that if there was an issue with Building regulations then she would have advised that that would not justify an increase in the size of a building. She does not recall any discussion relating to ground levels and says that her recollection was that the application site was a level site with no notable variations in site level.

The Committee report

vii. The committee report makes clear that 9.5m was a critical factor in the decision – it was not descriptive narrative. On page 38 it states that

The current scheme involves an increase from two storey to three storey although the maximum height of the development would only increase by 0.5metres…

The building proposed would be 3 stories high with an overall height of 9.5m. The approved scheme was 2 stories high at 9m

Due to the previous decision this increase in height of 0.5m…

viii. The report sets out that the previous scheme was for a height of 9m and that this one is 0.5m higher and with an overall height of 9.5m. It is clear that what permission was granted for was 9.5m high and that the plan that his report talked to was one showing a development 9.5m high. This was not a mistake because it clearly references the previous scheme. This was not a mistake because Mr Higham said in XX that the Committee report is written up by a case officer and he checks it. This was not a mistake because Emma Allenden is clear that it is the Council's plan that was approved by the Council.

12. Mr Koumis has been unable to help on the matter of the plans. He says he was never sent an original of the Approved Plan. He could not locate Mr Bardy or his previous partner or anyone who could assist him. He left "planning" matters to Mr Bardy and "control" to Mr Bardy. It was Mr Bardy who produced the plans and not him. There is nothing further that Mr Koumis can say about plans he has not produced particularly when he states that he has never seen the original. Neither can Mr Koumis help any further with the issue of the letter he produces from Mike Bardy regarding the increased height. He does not know that it was ever sent, that it was ever received, he is not aware of a response, he does not know whether a follow up letter was sent.

13. The Public Agenda would have had the Committee report attached and would have been available. It would be reasonable to assume that Mr Koumis, on his first development, would be interested in what that report said. He or his agent could have viewed it as a publicly available document.

14. Overall, it is obvious that we will probably never know what happened to the plan that has gone missing from the Council's file or why Mr Bardy produced the Appellant's plan. For these purposes, it is necessary for a finding on which plan is the one that is most likely to have gone out to consultation and the most likely to have gone to planning committee. Mr Bennett has confirmed that following his letter about revised plans, the Council's Plan is the one that he obtained for the purposes of consultation. Ms Allenden says the Council's Plan is the one that went to Committee. Mr Higham says the Council's Plan is the one that went to Committee. In my submission, it is obvious from the wording of the committee report that permission was granted for 9x2 bedroom flats and that the height was 9.5m. The logical conclusion is that the plan that accompanied that report also showed 9x2 bedroom flats and a height of 9.5m.

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20. The scheme that would result from the requirements of the EN would not be uncontrolled or out of keeping with the character of the area. It specifies the ridge height (with a suggested variation in the EN to measure from a fixed point), it specifies that the mansard is to be removed, it specifies that the roof is to be shallow pitched and hipped. Mr Warden explained that this does specify the design and explained how the roof would be hipped and that it is achievable and that the Appellant is not constrained to tiles that serve a 22 degree pitched roof.

21. This would result in a building without the dominant mansard and would result in a lower form of residential development. The hipped roof is not uncommon in the area (Mr Warden referred to Ashbourne Lodge when giving evidence). The overall effect would be a development sitting more comfortably in the townscape rather than dominating it.

The effect of the development on neighbours' living conditions with particular regard to overlooking and whether it is overbearing

22. This mass, bulk and height serves to provide a further floor of overlooking and a further floor of bulk which creates an overbearing impact on neighbouring development.

23. In particular, Hazelwood Court is significantly impacted (particularly from the flat 8 and garden shown at photograph S), Numbers 20 and 22 Hazelwood Lane are looked onto and the rear properties on Park Avenue are 2 storey properties that are faced with a rear elevation comprising 4 storeys of development.

24. The table at A1.7 provides for window to window distances of at least 25m. It is right that there were not perfect separation distances for the scheme granted permission. It is right that there will not be perfect separation distances if the scheme is altered to comply with the EN. However, as Mr Warden said, as a building gets higher, it is expected that separation distances increase. Here, that is not the case.

25. Overlooking, privacy and overbearing impact is not just about distances. It is about the feeling of being over looked, it is about the feeling of enclosure. As Mr Warden said, the further floor provides for occupiers to feel that they are being looked down upon from the upper storey or terrace. The terraces may be screened but the effect is that when the screening adds to the feeling of enclosure for neighbouring occupiers and without the screening the overlooking is obvious.

26. For the Appellant to submit that those properties, flat 8, do not feel an unacceptable impact is, it is submitted, not credible when that unit is faced with development right up to the boundary and from his garden of only 4m in length. Compliance with the EN would resolve that unacceptable impact.

27. The residents of Ashbourne Lodge are faced with substantial additional bulk at roof level by virtue of the Mansard Roof. The gardens of 20 and 22 Hazelwood Lane are faced with the bulk of the mansard roof to the rear and the projection from the front block and the adjacent substantial gable end. The third floor windows to the mansard roof of the rear block look down on to the rear gardens of numbers 20 and 22. The residents of Park Avenue are also faced with the additional bulk of the rear block from their dwellings and from their rear gardens.

28. The sense of overlooking and overbearing impact is significant and is harmful. The suggested steps in the EN would serve to reduce the additional bulk so as to reduce the impact.

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31. The Council acted fairly with regard to this development. It did not require demolition. The requirements of the EN will provide a development that is of lesser height and lesser massing, the appearance is controlled by virtue of the design of the roof being hipped and shallow pitched, the shallow pitched roof is not an inappropriate design but a solution to reduce the bulk and effect of height, there would be a significant change in the impact in terms of overlooking and sense of enclosure for neighbours.

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13. The written closing statement dated 23 March 2011 on behalf of Mr Koumis included the following:

(ii) The "Appellant's Plan"

4. Before the Inquiry there are several plans which bear the same reference as that [are]n s on Park Avenue are 2 Sgraphs 16 and 17] than was conceded by Enfieldaying that she did not consider or would have powe set out in the decision notice for the 2005 permission. However one, and only one, plan carries the Council's standard stamp stating that the scheme has been approved subject to conditions on 31 August 2005. It might be commented that it is wholly extraordinary that a local planning authority come to an Inquiry – and indeed a previous appeal – saying "although it bears our stamp, it is not the approved plan. Some other plan is approved – but we don't know where it is".

5. The presence of the stamp is a matter to which Mr Warden attaches little weight. However, it is a crucial point, not least because Mr Higham and Mr Warden accepted in XX that the stamp appears to be that of the Council. They produce no evidence to say that it is not. Mr Warden suggests that it may have been manipulated. But the Council do not suggest that the Appellant dishonestly asserts that this is the correct plan.

6. Mr Warden has engaged in a detailed critique of the Appellant's plan. Those criticisms are generally without basis, and certainly do not amount to a reason to conclude that a stamped approved plan is not what is seems to me. Taking each in turn:

a. There is nothing to be gained from the fact that the Council stamped two plans as having been received on the same day. It does not suggest that either was or was not the one that was ultimately approved;

b. The absence of an indication that the plan is revised goes nowhere. It is plain that not all revised plans received by the Council are marked accordingly: see for example the plans exhibited at DW4 and 5;

c. The reference number omits a "/". However, it is clear from Mr Warden's survey of the plans of at DW15 that sometimes the reference number is added to a stamp which reads "TP…", in which case no "/" is added. In other cases the case number is stamped on, and "TP" added in manuscript. Further, a plan which has seemingly always been in the Council's possession is marked without a "/" (DW5);

d. The terms "Submitted Planning Drawings" merely emphasises that this architect was wholly inconsistent in the headers he included in plans. DW15 emphasises this to be the case – there is no pattern at all.

e. There are obviously different features of this plan compared to others including the Council's plan; but there is no reason why all annotations should remain the same. Illustrative detailing may well vary on different iterations of plans. The 6m separation from the site boundary was a matter which had clearly been settled some time before July 2005 and therefore it was superfluous to repeat the same on later plans;

f. Notations to elevations – where height is a key issue – is obviously a sensible matter to include. As Mr Warden notes, there did not appear to be a site survey so noting a potential inconsistency in levels was prudent;

g. Flat 7 was as much a 2 bedroom flat with a kitchen diner as it was a one bed flat with a separate lounge. Mr Warden accepted the same but felt that the configuration of the kitchen may cause difficulties. Of course, internal layout of the kitchen could have changed once the building was erected;

h. The "further errors" (at 2.2.38) only serve to show that the Appellant's plan was a later iteration.

7. Contrary to Mr Warden's assertion, Mr Higham first saw the Appellant's plan in May 2007; he said the same twice on oath and once in a statutory declaration. Mr Warden's apparent resistance to this serves to emphasise that he has strived mercilessly to discredit this plan. He has failed to do so. Further Mr Koumis produces a covering letter explaining the revised plan and change of heights, showing that a 10.5m building was presented to the Council in 2005.

8. All the later "party wall" plans show a 10.5m scheme. The suggestion that this plan is not credible because it would be too wide for the site ignores the fact that this is not a scale drawing, and carries the warning "do not scale". For that reason all the plans show a height scale in figures, to avoid "scaling off" errors.

9. It is also noted that the key witness for the Council is of course Mrs Allenden (see paragraph 5.8 of their Statement of Case). She is on maternity leave but we are told would have come but for a family holiday. The Council can – and did – elect for a changed Inquiry date and could have explained their need to do so on the basis of the absence of their key witness. As a result, we have not heard live evidence from the case officer or been able to contest the accuracy of her recollections.

(iii) The Council's plan

10. We turn then to the plan that the Council says is approved. The provenance of that plan is far less credible than that of the Appellant. The Council says it received an excerpt from this plan from a neighbour; but that plan did not bear the correct reference and on no arguable basis could it be the plan referred to in the 2005 permission: there was simply no reason to believe that was the plan.

11. The plan now produced is from Mr Bennett. 5 ½ years ago he attended the Council offices. He was provided with a file: we know not whether it was the working file or the public file, nor whether all the plans were on that file. He photocopied a plan from a file where there were other plans. He accepts he may have copied the wrong plan, although he thinks it unlikely. It was not the "approved" plan because no consent had been given at that date he copied the plan. He is inconsistent in the dates he said he visited. The Council's own records, of course, do not show this plan in any form – approved or otherwise.

12. In conclusion, we submit that on the balance of probabilities the Appellant's plan is the approved plan. Perhaps Mrs Allenden made a mistake in her report to Committee. Perhaps her (untested, due to her absence) recollection was wrong. But what the Inquiry has is a stamped approved plan showing clearly a building of 10.5m in height.

Planning merits

(i) The issue for the Inspector

13. The starting point for any analysis of the appeal scheme is what will be constructed if the appeals are dismissed. It is more than a "fallback" position because it is what the Appellant must do, under the terms of the enforcement notice, if the appeals are dismissed. It is therefore a highly material consideration to the determination of this appeal. It has the following features:

a. Three storeys in height;

b. 8m eaves;

c. Unknown roof form. Mr Warden has his firm view as to what a hipped roof with a shallow pitch would look like. However, it is obvious that a hipped roof and a "shallow" pitch could take many different forms. There is no certainty as to what would be created by the EN scheme;

d. Unknown materials;

e. No planning conditions.

14. Mr Warden accepts that the backstop is determined by the approved scheme, whether 10.5m or 9.5m. Mr Warden accepted my formulation of the fundamental question for the Inspector, namely whether the features of the appeal scheme which are not present in the EN scheme would unacceptably affect the amenities of neighbouring properties or cause unacceptable harm to the character and appearance of the area.

15. Further Mr Warden accepted in XX that the Inspector must strike a balance between the positive aspects of the scheme in the form of provision of additional units, efficient and effective use of the site and maximisation of density; and those alleged negative aspects which form the reasons for refusal/issuing the enforcement notice.

16. In short, the question which we say is posed by this appeal is whether any additional harm caused by the elements of the scheme which are attacked by the enforcement notice is sufficient to outweigh the policy objectives in PPS3, the London Plan and the Core Strategy to deliver housing on previously developed land, maximising the intensity of use and using the land efficiently and effectively.

17. On that point, it is noted that Mr Warden in his proof of evidence fails to mention paragraphs 36, 40, 45 and 50 of PPS3; fails to highlight the push towards intensification of use in 3A.2, 3A.3 and 4B.1 (the first bullet point) of the London Plan; and the support in Core Strategy CP5 and paragraph 5.45 for densification. These are significant omissions – and there is no attempt at all to balance these factors against the harm that he finds to exist. His is effectively a design appraisal but not a rounded planning assessment.

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(v) Amenity issues

23. The issues appear limited to overbearing impact and overlooking/privacy issues (XX Warden). The logical approach to this development is to take each part of the development in its own right – it is in two distinct blocks, with different features and different impacts. The Inspector will have seen the points in detail so again they do not require extensive repetition but the following points are noted:

a. The Park Avenue properties are some distance from the building, and the change of height and roof design can have no more than a negligible impact. There is no overlooking issue with these properties;

b. Overlooking of Ashbourne Court is not materially worse by virtue of further windows in the rear section. The structures are separated by a considerable distance, and the (slightly) increased mass and height cannot be said to have such an adverse effect as to justify refusal;

c. The views into Hazelwood Court are extremely limited so overlooking is very limited. The stairwell window can be obscure glazed. The EN scheme would also present significant built form immediately on the boundary, and therefore the change is of limited significance;

d. The views into 20-22 Hazelwood Lane are again very limited indeed, so overlooking must be limited here. The overbearing impact has been exaggerated by zoomed photographs from the access road, rather than the rear gardens.

24. Ultimately, the Inspector will form her own view on these issues having seen the site. However, two points are emphasised again: (i) the question is the additional harm from the elements not present in the EN scheme; (ii) if the Council is wrong and the permitted scheme is 10.5m, the differences are very limited indeed. There are no daylight/sunlight issues. Mr Wilson is obviously mistaken in saying that the appeal site blocks his sunlight as 1B Hazelwood Road is to the south of the appeal site.

Variations to the notice

…

(ii) Time for compliance

29. Very extensive works would be required to comply with the notice. Mr Koumis has obtained a time estimate suggesting 20 months is required. The Council do not produce rival evidence, but take the view that 6 months would be sufficient. There is no evidence that the works could be done in the winter. Such a time limit would – on the first class evidence of Mr Koumis – still be insufficient and therefore the period of 20 months is still sought.

Conclusion

30. The Council's analysis of the planning merits is flawed because:

a. It wrongly assumes consent was granted for a 9.5m rather than 10.5m scheme. That error infects the entirety of the Council's case. Even if the Appellant's case is not accepted on that point, the further errors below still result in a flawed analysis;

b. It misreads the context of the site as suburban residential, when it is close to Green Lanes and of a robust and mixed townscape character;

c. It exaggerates harmful effects through the way it has presented its case, rather than producing a balanced analysis…;

d. It fails to balance the significant benefits of the scheme in terms of provision of accommodation against the alleged harm. This is a major error on the Council's part.

31. In short, even if there is some limited harm from this scheme beyond that in the EN scheme – it is hugely outweighed by the benefit of making efficient and effective use of a site at an appropriate density and by providing two additional residential units in this scheme. For those, and all the reasons in the Appellant's evidence, the appeals should be allowed.