R (oao) Neophytou vs Enfield Council and Chubbah [2022] EWHC 521 (Admin) was an application for judicial review of Enfield Council’s decision to take no enforcement action against an acknowledged breach of planning control. 

The case involved a dispute between two neighbours whose back gardens were steeply sloping. Remodelling of the Chubbahs’ garden, including alterations to an existing terrace and rebuilding of a garage, enraged the Neophytous who alleged substantial land raising and consequent overlooking problems. They hired consultants and engaged in extensive “dialogue” with council enforcement officers.

Two retrospective applications were refused. Following long running discussions and threats of enforcement action, the Chubbahs made further alterations to the terrace to the council’s satisfaction. The council therefore took a decision that it would not be expedient to take enforcement action. A report was prepared, a spreadsheet of points outlined the decisions taken and the Neophytous were informed and sent a copy of the spreadsheet. 

They sought judicial review of the decision. It should be noted that the action is a straightforward JR on public law grounds and not the planning-specific statutory review under s288/289. A decision can be challenged if the decision maker got the law wrong, failed to consider the right matters, reached an irrational conclusion or if there was some procedural impropriety.

The decision to enforce is discretionary, said the judge. It requires expediency. Expediency is solely a matter for the council. The council is “entitled to seek remedial work before enforcement” and is “entitled to consider whether enforcement would be upheld on any appeal” as part of considering expediency.

One of the key points related to the evidence before the council at the time it took its decision. The facts about what changes had been made were, as is often the case, opaque. The Neophytous claimed the terrace was raised by 1.7m, the council thought it closer to 2cm (“one paving slab”). The discrepancy arose partly due to the sloping ground and the shape of the old and new terrace but also partly because, as the judge found, the Neophytous and their professional advisers were unreliable witnesses. 

Here the judge was clear. Where there is a dispute as to the facts, it is for the council to determine those facts. The court will not interfere unless four factors are present. 

“First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the [decision-maker's] reasoning”

The key is the second point. To be reviewable, it must be agreed (or at least incontrovertible) what the true facts were. Where, as here, the facts remained a matter of dispute, that could not be the case. This, then, is a high bar for a JR claimant.

Similarly, whether there was a breach of planning control is not the primary consideration. For JR, what mattered was whether the council’s decision in relation to that breach was correctly taken.  

In that respect, the council was entitled to take into account the lack of harm to amenity, the risk of appeal, of costs and reputational damage.

There are some jumps in the reasoning in this case, perhaps reflecting the details of the case. For example, it seems to have been accepted that a lack of harm to amenity would necessarily result in an enforcement notice being quashed. Or that the 30cm PD limit for raised platforms was to be measured from the height of the previous (immune) terrace rather than natural ground level. 

But the judge supported the council’s decisions as to fact and its decision that it would not be expedient to take action. 

The decision is a reminder that, while enforcement action is discretionary, a proper investigation and decision making process is necessary otherwise the decision not to take action can be challenged. Had the council’s decision records been less clear and had the Neophytous been more reliable witnesses, a different decision could have been reached. At a time when many councils are cutting back on discretionary services, this is a welcome reminder. We understand that the government is considering giving clearer statutory backing to the need for enforcement investigations by councils in the near future.  Taking enforcement action is discretionary, considering enforcement action is not.