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Council defeats legal challenge over refusal of extension for compliance with planning enforcement notice

The London Borough of Brent did not act irrationally when it refused to extend the period for compliance with a planning enforcement notice, HHJ Jarman QC has found in the Administrative Court.

Claimant Ben Kpogho challenged the notice that required him to demolish a two-storey side extension, two-storey rear extension, single-storey rear extension and various other additions made to a house he owns.

In Kpogho v London Borough of Brent [2020] EWHC 1905 (Admin) HHJ Jarman said Mr Kpogbo emailed Brent with only 12 days of the compliance period remaining to ask for an extension so he could lodge an appeal against its refusal of his application for retrospective planning permission.

Brent refused but the High Court allowed Mr Kpogbo to bring his case on the grounds that the council arguably erred in law by failing to have regard to its discretion under s.70C Town and Country Planning Act 1990 to entertain two retrospective planning applications, and/or that it came to an irrational conclusion when taking this decision.

“I am satisfied therefore that consideration was given to the relevance of the exercise of discretion (or not to exercise it as in this case) under section 70C,” the judge said.

He noted that irrationality was “a high threshold for Mr Kpogho to reach”.

Mr Kpogbo said Brent acted irrationally by failing to extend the time for compliance with the notice to align with the decision in an appeal against his second retrospective application.

Brent submitted there was no entitlement to have the merits of an application for retrospective planning permission considered on appeal before the time for compliance with an enforcement notice expires.

HHJ Jarman said: “With the benefit of hindsight, there is force in Mr Kpogho's submission that for him to incur the cost and inconvenience of demolishing the extensions and other features referred to in his second application for retrospective planning permission, only to incur further cost and inconvenience in rebuilding them if in the event the appeal was successful, appears to be nonsensical. That possibility could not have been discounted by [Brent] when making the decision under challenge.

“However, in my judgment the council was entitled to take a view on the planning merits of any appeal.

“The council was entitled to take into account that there had been no appeal against the notice and the council had refused both applications for retrospective planning permission.”

The judge added: “To hold that it was irrational of the council to refuse an extension where there had been no appeal in respect of the notice and where two applications for retrospective planning permission had been refused comes close to frustrating the aim of reducing delay and not allowing two bites of the cherry. In my judgment the council's refusal of the extension was reasoned and reasonable.”

Mark Smulian