ENFORCEMENT, TIME LIMITS & CHANGES OF USE JAMES FINDLAY 2-3 GRAY’S INN SQUARE

SECTION 171(B) (2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.

THREE ISSUES Section 171B(2) Dwellinghouse/use as a dwellinghouse Change of use/breach of condition Section 171B(2) and (3) 3. Proper approach to period of non-compliance

Purposive approach The underlying purpose of s.171B(3) is to confer immunity in circumstances where, throughout a relevant period of unlawful use the local planning authority, although having the opportunity to take enforcement action, has failed to do so; consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement.

(1) What is a dwellinghouse? The distinctive characteristic of a dwellinghouse is its ability to afford to those who used it the facilities required for day-to-day private domestic existence. It does not lose that characteristic if it is occupied for only part of the year, or at infrequent intervals, or by a series of different persons, or if it is under commercial management for holiday or other temporary lettings – Moore v SOSE

Dwellinghouse A building remains a dwellinghouse whether it is used all the time by one family or is used for holiday lets. It is the ability to use it to dwell in that is important. The extent/size of “accommodation” can be very limited indeed.

“the change of use of any building to use as a single dwellinghouse” The section provides that any building  can qualify if it is used  for the requisite period as a dwellinghouse. The fact that the building may lack the normally expected comforts (e.g. running water and sanitation) of a dwellinghouse should be irrelevant. It is how the building is used that is the only question. Van bodies in barns hidden behind hay bales.

GRENDON v FSS [2006] EWHC 1711 (Admin), [2007] JPL 275 The building measured about 4.25m x 5.8m and had a monopitch roof of corrugated sheets.  It had a small window under the eaves at the north end and the south end was until recently largely open when the wooden shutters were folded back.  Within the previous year a window had been fitted behind the shutters.  There was a sleeping platform at one end of the room and a sitting area with a settee at the other.  Heating was provided by a wood burning stove and there was a butane gas hob for cooking.  The walls were largely occupied with shelving containing books, music CDs and other personal possessions.  Electricity had been recently connected, but for most of the period of occupation light had been provided by candles and paraffin lamps.  There was no running water, bathroom or toilet at the property.

Grendon v FSS The Inspector was simply unable to find as a matter of fact that the premises constituted a "dwellinghouse" and they could not be turned into one by the mere fact of the Claimant living there and so unnecessary to consider period of occupation. The Court upheld the approach. The test is simply whether any building is being used as a single dwellinghouse. Yet the judge adopted a slightly different approach, i.e. to first consider whether the building is a dwellinghouse and then, if it is, whether it has been used as a single dwellinghouse for the requisite period. It failed the first test.

Is it correct? “There is something unsettling about this decision.” (Commentary in JPL) Strongly arguable that is inconsistent with Swale (e.g. para’s 25 and 35) which was not cited. In that case, during the period in which it was alleged that immunity was acquired the Inspector found that the building was not a dwellinghouse. At most there may be a difference in the evidential burden between a building which is a dwellinghouse and one which is not (see per Sedley LJ in Swale)

(2) CHANGE OF USE/BREACH OF CONDITION Eg Condition prevents sub-division of building into separate dwellings/change of use of a non-residential building Is it 4 or 10 years Court of Appeal in FSS v. Arun DC [2006] EWCA Civ 1172 determined 4 years, overruling HH Judge Mole Q.C.

FSS v ARUN DC [2007] JPL 237 Section 171B(2) covers any breach of control which arises from the change of use of an building to a dwelling house. However, 10 year rule will still apply to conditions which seek to control use of an existing dwelling house, e.g. agricultural occupancy/holiday lettings only etc.

(3) Proper approach to period of non-compliance The new, unlawful use must continue throughout the period in order for the immunity to accrue. It is material that the interruption in the use was not the result of a freely made choice on the part of the Claimant. What matters is that the objectionable use actually ceased and there was no longer any need or opportunity for the local planning authority to take enforcement action.

Consistent COURT OF APPEAL AUTHORITY SOSE & Ano V THURROCK BC [2002] EWCA Civ 226 – concerned use of land as airport. Swale BC v FSS [2005] EWCA Civ 1568

DATE OF CHANGE The only effective test is to compare the present use with the previous use, or the use in the base year (i.e. normally 10 years prior to taking enforcement action) and assess whether there has been any material change.

CONTINUOUS USE, BUT ACTIVITY CAN CEASE FROM TIME TO TIME The question is whether Enforcement action can be commenced within the applicable 4 or 10-year period, even if at the moment of issue of the enforcement notice the activity objected to is not actually going on (e.g. because of holidays), because the land could still properly be described as being used for the objectionable activity. However, that did not apply once the activity had permanently ceased. An enforcement notice could not be issued in respect of a use that had ceased to be an active use before any planning right had accrued.

Now you see it, now you don’t Pub with accommodation up above Pub area used as part of residential accommodation. Obvious signs of that use cleared away when premises shown to potential buyers and upon planning officer visits. Inspector held that each time cleared away no enforcement action could be taken. Hence, 4 years ran afresh.

Miles v National Assembly of Wales [2007] EWHC 10 (Admin) The effect on the accrual of any immunity of the period of about 18 months beginning in the autumn of 2000 when no motorcycling activity took place on the land because of the outbreak of foot and mouth disease. The inspector found that the foot and mouth restrictions were an interruption notwithstanding intention to continue. Challenge failed.