Tuesday, 20 April 2010
4-year rule or 10-year rule?
If operational development takes place without planning permission and four years pass following its substantial completion without enforcement action having been taken against that development, then it becomes lawful by virtue of s.171B(1). There is, however, a well-known exception to this rule, as demonstrated by Murfitt. [The rule also applies to works which are not development, for example because they were purely internal and did not affect the external appearance of a building – Somak Travel.]
This requires an examination of the relationship of the operational development to any change of use and it may perhaps depend on or be influenced by the relationship between the building and the planning unit. Does the planning unit comprise the building and its curtilage (i.e. is the building effectively the whole of the planning unit, together with any curtilage which it may have) or is the building erected on part of a larger planning unit? In that case it may be necessary to consider what relationship the use of the building bears to the use of the planning unit as a whole.
Sullivan J (as he then was) surprised everyone by suggesting in R (Mid Suffolk DC) v. FSS  EWHC 2634 that merely because a structure has become immune from enforcement action because it has been in existence for four years does not necessarily mean that any particular use of that structure will also be lawful. He pointed out that Section 75 (which provides that a planning permission for the erection of a building may specify the purposes for which the building may be used, and if no purpose is specified then the permission may be taken to authorise the purpose for which it is designed) has no application in relation to a building the erection of which was not authorised by planning permission but has become lawful solely by reason of the 4-year rule.
We now also have the case of Sumner v. SSCLG  EWHC 372 (Admin) in which judgment was given by Collins J on 11 February 2010. In Sumner, an EN was served in respect of unauthorised C/U of a building. The appellant argued (both on appeal and in the High Court) that the use derived from the erection of the building (i.e. it was the purpose for which the building was erected) and therefore the 4-year rule applied. Paul Stinchcombe argued that s.75(3) should apply by analogy, but Collins J rejected this argument. Sullivan J’s earlier dictum in Mid-Suffolk does not seem to have been referred to. Stinchcombe’s argument was that if the building itself was lawful under the 4-year rule, it would produce a ridiculous situation if it could not lawfully be used for any purpose.
Collins J suggested it could be used for any purpose ancillary to the lawful use of the planning unit as a whole, but this implies that (a) there is an existing planning unit which is only partly occupied by the building, and (b) that the building remains part of that larger planning unit and is not hived off into a separate planning unit comprising only the building itself, or perhaps the building and a reasonable curtilage.
If there is a pre-existing lawful use of the site itself (whether by express permission or under the 10-year rule), then erection of a building or the execution of engineering works for the purposes of that existing lawful use will not give rise to any issue regarding change of use. The use of the building or other works for the same lawful use as the planning unit as a whole will not be in question, and the operational development involved in its erection is capable of becoming immune from enforcement under the 4-year rule.
Difficulty only arises where the use of the new building or other works also represents or is associated with a change of use of the planning unit as a whole. In this case, the rule in Murfitt clearly comes into play. The unresolved point relates to the use of a building which constitutes the whole or substantially the whole of the planning unit, where the use of the completed building differs from the previous use of that site, or where the building (together with any curtilage which it might be given) is hived off from the previous planning unit and becomes a separate planning unit, again used for a different purpose compared with the pre-existing planning unit.
This effectively resolves itself into two separate questions :
(1) If the building constitutes the whole or substantially the whole of the planning unit, should consideration be given to the issue of a material change of use of that planning unit (comprising the building and any curtilage of that building), as distinct from the operational development involved in its erection?
(2) If the building occupies only part of a planning unit and remains part of that planning unit, but the use of the planning unit changes with the erection of the building, does the lawfulness of the use of the building depend on the lawfulness of the use of the planning unit as a whole? If so, that would depend on the operation of the 10-year rule, and the rule in Murfitt would appear to confirm this.
I understand that Sumner may be going to the Court of Appeal, so we shall have to wait and see.
© MARTIN H GOODALL