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  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  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