Saturday, 2 June 2012

10-year rule problem

The case of Harbige v Secretary of State for Communities and Local Government [2012] EWHC 1128 (Admin), in which judgment was given by Ouseley J on 21 March 2012, posed an interesting question concerning the interaction of the 10-year rule with the provisions of section 55(2)(f) of the 1990 Act.

This case arose from an enforcement notice appeal under section 174. The appeal had been allowed and the enforcement notice (‘EN’) had been quashed by the inspector. The claimants, who were neighbours living in a nearby flat, had no standing to appeal to the High Court under section 289, because they had obviously not been served with copy of the enforcement notice, so they correctly applied under CPR Part 54 for judicial review of the inspector’s appeal decision.

The EN had originally alleged "the unauthorised change of use of the land from the pre-1994 authorised B1 light industrial use to the currently unauthorised use within use class D1 .... including, but not limited to, a place of worship .... " The Inspector corrected the notice, so that the allegation read "without planning permission the unauthorised change of use of the land to use as a place of worship with ancillary activities within class D1 of the Town and Country Planning (Use Classes) Order 1987".

Planning permission had originally been granted by the LPA for a change of use to use as a place of worship (within Use Class D1) in 1994, but it was contended by the LPA (and accepted by the inspector) that conditions precedent to that planning permission had not been complied with, so that the use as a place of worship was originally unlawful. However, it was submitted on behalf of the appellants that in any event the use of the appeal premises for various purposes within Use Class D1 had continued for more than 10 years and was now therefore immune from enforcement.

There was some debate as to whether the use had at one stage been a mixed D1 and A2 use (involving the operation of an employment agency) so that, because this would not have fallen within a single use class, it had been a sui generis use for several years before the current use of the premises exclusively as a place of worship had commenced in July 2009. In the event, it was found that there had been successive changes of use of the appeal site since 1993, but that all of them fell entirely within Use Class D1.

The question for the Inspector, and for the Court, was whether the separate uses since the original breach of planning control in 1993 (being within a single use class) could be aggregated together to achieve immunity under the 10-year rule, or whether the fact that no single use had continued for 10 years prevented the 10-year rule from operating. In other words, could immunity only be acquired by one specific purpose being continued in breach of development control for 10 years, or could a sequence of different uses all of which fell within one and the same Use Class acquire immunity, so that the particular use being undertaken at or after the expiry of the 10 years was immune from planning control?

It was accepted on behalf of the claimants that if immunity from enforcement action is obtained, so that a particular use then becomes lawful, and there is then a further change of use within the same use class, then section 55(2)(f) of the 1990 Act will operate, and this further change of use does not constitute development. However, it was argued on behalf of the claimants that this did not apply where, prior to immunity being achieved, there had been a mixture of uses within the same use class (in this case D1) over the period of 10 years, with the result that no immunity could be claimed in these circumstances.

The Court considered the relevant wording of section 55(2), which reads:

"(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land –

(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class."

The reference to “any class specified in an order” is, of course to the use classes set out in the Use Classes Order.

Crucially, if the claimants’ submissions were to be accepted, it would be necessary to read the word “lawfully” into the wording of section 55(2)(f), so that it would operate only where buildings or other land are being lawfully used for a purpose of any specified use class. Ouseley J was unable to accept this contention. In his judgment, it was quite clear that the structure of the Act and its language does not permit the interpolation of the word "lawfully", nor of any construction in which a single purpose within a use class has to be undertaken for 10 years before immunity is conferred on uses within that class. The starting point is that section 55(2)(f) does not contain such a word. His lordship accepted that there are some instances where courts have implied the word "lawful" into statutory provisions, particularly where this word had appeared in other sections of the statute (as it does, for example in sections 57(4) and (5)). But in this context, which creates the circumstances in which development is or is not lawful, it would be wrong, in his judgment, to interpolate the word "lawfully", and thereby to produce such a change to the effect of the provision.

The inspector had therefore been entitled to conclude that that after 10 years of use within class D1 no enforcement action could be taken. The effect of the sequence of changes within class D1 was that the use that began after the use as a place of worship initially ceased did not constitute development. Nor did the subsequent changes constitute development, and so neither did the recent commencement (in 2009) of a fresh use of the appeal premises as a place of worship constitute development.

Ouseley J nevertheless spelt out the limitations of this approach. Suppose that a use is started within class D1, and after 2 years it is changed to a different use within class D1. By section 55(2)(f) that second change of use does not constitute development. However, this does not confer immunity merely because this second change of use is not development. The use remains part of the continuing unauthorised D1 use, and can be enforced against. It has simply taken a different form, but the change of use to the use of the site within Use Class D1 remains unlawful until this use (or use for other purposes within this same use class) has continued for 10 years.

The claim was dismissed. An application for permission to appeal was made but adjourned. By one means or another this is a case which might conceivably reach the Court of Appeal, but this judgment does appear to be a sound commonsense approach to the interpretation of the relevant statutory provisions, and the concerns expressed on behalf of the claimants regarding this interpretation of the statute do not appear to be justified, as Ouseley J made clear.


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