Monday, 19 March 2012

The 4-year rule – Holiday lets and second homes


‘Rick’ has raised a query in relation to my post on the 4-year rule. How does this stand against a breach of a planning condition? He cites the example of a condition that requires the property to be used only as holiday accommodation (usually for a stated maximum period of such occupation in any calendar year). As he points out, breaches of condition come under the 10-year rule, except where the breach of condition results in a change of use to use as a single dwellinghouse. Surely, Rick suggests, it is arguable that a residential use for holidays is materially different from a residential use facilitating full time occupation.

The case which Rick clearly had in mind is Arun DC v. FSS [2006] EWCA Civ 1172, which established that a breach of condition which results in a property being used as a single private dwellinghouse is governed by the 4-year rule. So if a granny annex becomes a separate dwelling in breach of a condition forbidding this, it is the 4-year rule that applies. However, if the property was a separate dwelling in the first place (which most holiday homes are), then a condition restricting the time in any one calendar year during which it can be used would be subject to the 10-year rule. This was confirmed by the judgment in Bloomfield v SSETR (1999).

Decided cases (e.g. R v. Tunbridge Wells BC ex p Blue Boys Development (1989) and Moore v. SSE (1998)) clearly indicate that (subject to the basic rule in Gravesham), buildings used as holiday homes are to be regarded as dwellinghouses, falling within Use Class C3. Thus, if we are looking at a change of use of a permanent structure to a use providing holiday accommodation, this is a change of use to use as a dwelling, and it is the 4-year rule that applies.

A further question arises where a non-domestic property is converted to a dwelling but is used purely as a holiday home rather than for full-time occupation. Is that use continuous so as to qualify under the 4-year rule? The leading case is Swale DC v. FSS [2005] EWCA Civ 1568, where it was held that it depends whether the building has been used as a single dwelling throughout the whole of the four years. The court rejected the suggestion that continued availability or suitability for continuing use as a dwelling was sufficient. There had to be continuity in the actual use of the property.

This suggests to me that a distinction may possibly be drawn between second homes and holiday lets. A second home is arguably in continuous use even when the family are not actually staying there, whereas a building which is let out as a holiday home is might be said to be in use as such only during periods when it is actually let. Any void periods of more than a few weeks at most might arguably break the continuity of the use, whereas even if family visits to a second home are infrequent the use is arguably continuous nonetheless.

However, even in the case of holiday lets, it could be argued that when they are not actually occupied, they remain fully furnished and equipped and are not therefore merely available or suitable for use in the sense mentioned in Swale, but remain in actual use even when they are not actually being occupied by guests. The test proposed by the Court of Appeal in Swale was whether the change of use remained susceptible to enforcement action by the LPA. If it could be argued at any particular time that the breach of planning control was not continuing at that time, by virtue of the property not being used for the unauthorised purpose, then the continuity of the use for the purpose of the 4-year rule was broken, and any resumption of the use would be a fresh breach of planning control, with the clock re-set to ‘zero’.

I have previously drawn attention to a planning appeal which related to the breach of an agricultural occupancy condition, where an Inspector accepted the proposition that it would be sensible to ignore a very temporary stopping and starting, so that this would not be taken to be an entirely new breach. There is, however, no judicial authority on the point other than a reluctant passing observation of the Deputy Judge in N Devon DC v. SSE that “continuous physical occupation is not required for there to be occupation in breach” (a remark which was actually directed to the continuity of a breach of a seasonal occupancy condition, which is not quite the same thing as we are discussing here).

Thus holiday lets remain a grey area so far as the 4-year rule is concerned, although I am more confident that second homes would usually be capable of benefiting from the 4-year rule.

© MARTIN H GOODALL

5 comments:

Martin H Goodall LARTPI said...

When this post was first published, I inadvertently cited the first instance decision in Arun . It was the Court of Appeal decision to which I had intended to refer, and the citation has now been corrected.

paul baines said...

An interesting article.

I have a holiday let property (planning permission obtained in 2000), in August 2008 my sister has lived in the barn permanently. THe original planning permisson did not condition a break clause, i.e. the property could be occupied for twelve months. In 2011 on recieving an offer on the property, the Council stated that the property could not be occupied for more than 30 days by the same occupant. I lost the sale. The Council were challenged then they changed there mind to 11 months, admitting their mistake.

THe Coucil have changed the original planning permission without any reference to me. I want to appeal and change the permission to full residential. How do I do this?

Martin H Goodall LARTPI said...

I assume that in this case there is a condition that requires that the property be occupied solely as holiday accommodation, but without precluding occupation of the property for more than any specified period in a single year.

However, if there is such a condition, then permanent occupation as a residence would be in breach of that condition. It may be difficult to decide how long the occupation has to continue before it becomes a breach of the condition, and that may be what led the Council to assert in the first place that occupation for more than a month would be a breach of the condition. I think I could understand the logic of such an assertion, although one could envisage some circumstances in which a single period of holiday use could extend beyond a month. On the other hand, occupation for 11 months, if the condition is for holiday accommodation only, would seem to me to be a very generous interpretation of such a condition. I don’t think the Council can be accused of having ‘changed’ the planning permission – they are just trying to make sense of a condition which may be difficult to enforce with any precision.

Since the barn is already a single private dwellinghouse, albeit conditioned for holiday use only, it appears to me that the decision of the Court of Appeal in Arun would be of no assistance here, and so I think it would be the 10-year rule that would apply to any breach of this condition.

Anonymous said...

Hi Martin The conditioning used in a 1990 permission was
"The Holiday units hereby approved shall be occupied only from 1 March to 15th January"
I think with the add of your latest still digital book I have come to the following view. In the absence of specific wording limiting to holiday only and no explicit wording excluding Article 3(1)UCO then I believe you can move within C3 to residential without PP and apply for LDC if so minded.
With regard to the SOC a s73 application and presumably what you are looking at is the potential harm and benefits of an extra 6 weeks residential - also the grounds for an impostion of a Soc never existed it was always going to be s/c holidays of a high standard and a letter from the NRA said they had no objections it is obvious the LPA they used the SOC only as a device to prevent residential. So thanks.

Martin H Goodall LARTPI said...

In answer to the anonymous comment of 9 November, the permission in question seems fairly clearly to authorise a use that falls within Use Class C3, but conditioned so that it cannot be occupied from mid-January to the end of March. Breach of this condition would certainly not be one to which the decision of the Court of Appeal in Arun would apply. So a breach of this condition, by occupying the dwelling at any time within the proscribed 6-week period would be subject to the 10-year rule.

It may in fact be difficult to establish the continuity of a breach which occurs only for 10 six-week periods in 10 consecutive years, although continuous residential occupation of the property all-year round for at least 10 years might suffice. Short of this, however, it might be difficult to obtain an LDC in respect of the breach of this condition.

The intention of the condition may have been to restrict the use to holiday use, but I agree that the wording would appear to allow general residential occupation except for a 6-week period each year (although the Supreme Court decision in Trump International might allow the condition to be construed in such a way as to imply a term within it that gives proper effect to its apparent intention).

It might perhaps be possible to show that the difference in planning terms between 11½ months occupation each year and permanent residential occupation would be so minor as to justify the removal of the condition under section 73 (or 73A if there has already been a breach of this condition), and it would then be a question of the impact of this (if any) in planning terms. On the other hand, a section 73 application would give the LPA the opportunity to impose a more restrictive and effective condition.

I must confess that this would not appear to be an easy situation to resolve, and it would seem to be attended by various risks.