About 200 residents of what are said to be seriously sub-standard flats on a Bedfordshire industrial estate are a step closer to having to vacate their homes following a High Court ruling.
A senior judge upheld an enforcement notice issued by Luton Borough Council requiring residential use of a development of 109 flats on Luton’s Firbank Industrial Estate to end.
Arguments made by the flats’ developer and owner that the council failed, in serving the enforcement notice, to have proper regard to the public sector equality duty and tenants’ human rights were dismissed.
Subject to a last-ditch statutory appeal by the developer to a planning inspector, Mrs Justice Steyn’s ruling means that residents will have to quit their homes.
The site was formerly home to an office block and is located within a functioning industrial estate. The block is said to have been partially demolished and new structures erected to accommodate self-contained residential units.
An application for prior approval, under the GPDO, for the block’s change of use from offices to 130 one-bedroom flats was made in April 2016. In June the same year, the council made a formal decision that prior approval for the specified works was “not required”.
The council nevertheless approved the change of use, but emphasised that the conversion had to be carried out in accordance with the details provided by applicant Devonhurst Investments and that its decision did not imply that any consent was granted for “external works” outside the block.
Conversion works began and, on the basis of aerial photographs, the council decided that the block had since been partially demolished and rebuilt with extensions. Council officers advised that the works did not conform to the original proposal and had not been completed within the required three years.
The council decided that the change of use and construction works were unauthorised and issued an enforcement notice in February 2022. The notice required Devonhurst Investments to, among other things, demolish three two-storey structures and to cease residential use of the land.
The council reached its decision on the basis of an officer’s report that emphasised the “category A” employment status of the industrial estate.
A grant of retrospective planning consent was considered unlikely as the presence of residential accommodation was said to “compromise” business use of the estate. The report said some of the flats were poorly finished and offered “very inadequate living standards to current and future occupiers”.
It acknowledged that residents would clearly suffer “disruption and possibly distress” at having to vacate the flats. However, the report added: “It is considered that the current accommodation is particularly unsatisfactory and offers very poor, sub-standard accommodation that is injurious to the well-being and health of the current occupiers…the unauthorised accommodation is highly deficient in amenities, standards and quality.”
In concluding that the enforcement action was reasonable and proportionate, the report stated that the impact on residents was outweighed by “the public interest in ensuring appropriate land use and upholding the integrity of the planning system”.
The report noted that “the reasons for taking enforcement action in the public interest in this case are, in part, to protect the interests of all the occupiers so as to ensure that they do not continue to occupy sub-standard accommodation”.
Dismissing Devonhurst Investments’ judicial review challenge to the enforcement notice, the judge rejected arguments that Luton Borough Council failed to have proper regard to the public sector equality duty, the best interests of children living in the flats and the human rights of residents.
She told the court: “It is evident from the OR that the council consciously considered the impact of the proposed enforcement action on the needs of those with protected characteristics before issuing the notice.”
The council was aware that there were about 200 people occupying the flats, almost all of whom had tenancies of between six and 24 months. It had itself considered, but rejected, the possibility of placing homeless people in the flats temporarily.
The council, the judge said, had a “proper appreciation of the desirability of promoting equality objectives” and was not required to identify, on an individual basis, the circumstances of each occupier and any protected characteristics that they might have.
Devonhurst Investments, as landlord, was not acting as a representative of the residents and, although it was directly affected by the enforcement notice, it could not itself be viewed as a “victim” entitled to the protection of Article 8. The judge added: “It is manifest that no violation of Article 8 has been established.”
In having proper regard to the impact of the notice on children, the council “reached the view that the positive impact of stopping the use of such poor accommodation substantially outweighed the disruption and potential distress that was likely to be caused”.
The judge noted that the obligation to comply with the remedial steps required by the enforcement notice is suspended pending the outcome of Devonhurst Investments’s appeal against it, under Section 174 of the Town and Country Planning Act 1990.
