Tuesday, 30 October 2012

Holiday lets query

Rick Crombie has raised a query arising from my two blogs referring to holiday lets. The first was on “The 4-year rule – Holiday lets and second homes” (Monday, 19 March 2012), and the second was “Holiday lets may be change of use” (Saturday, 27 October 2012).

I can understand that at first sight the various rules explained in these two articles may appear confusing, but there is no contradiction between the two posts.

We are looking at two different types of development (or potential development). The first is a change of use of a dwelling to use as a holiday let; the second is the change of use of a holiday let to use as a permanent dwelling. In the latter case, an issue also arises with regard to a resulting breach of a condition or conditions attached to the permission for the holiday let.

Let’s take these two points separately. First, as regards a change of use of an existing dwelling; for the reasons explained when discussing the recent Moore case, the use of a single private dwellinghouse as a holiday let is not going to amount to a material change of use in the majority of cases. The Moore case itself demonstrated a clear exception to the usual position, but the circumstances of that case certainly were exceptional.

Next, let’s take a case in which planning permission has been given for the erection of a building for use as a holiday let, so that the planning permission itself is quite explicit as to the purpose for which the building is to be used (see section 75(2)). As I explained in the recent piece on the Moore case, the first use of that property can only be for the purpose specified in the description of development authorised by the planning permission (see Wilson v. West Sussex CC [1963] 2 Q.B. 764, East Suffolk CC v. Secretary of State for the Environment (1972) 70 L.G.R. 803).

In most cases, a holiday let will in practice have all the attributes of a single private dwellinghouse (as per Gravesham), so if it is subsequently used as a permanent dwelling, no material change of use would be involved. This is because, if the building could (even when used as a holiday let) be regarded as a dwellinghouse (as per Gravesham), then it will already be within Use Class C3. Section 55(2)(f) provides that changes of use within the same use class do not constitute development, and so the change of use from a holiday let will not (in most cases) amount to development.

However, where the holiday let was built under a planning permission, in such cases this change will almost certainly be a breach of condition. The conditions imposed on a planning permission for a holiday let may be either or both of two different kinds. First, there may be a condition which limits the period of occupation of the property, either specifying a maximum length of stay or specifying that the property is to be occupied only during certain months of the year. The other type of condition is one which specifically prohibits permanent residential occupation.

The general rule is that breaches of condition are subject to the 10-year rule (i.e. they will not become immune from enforcement until they have continued without a break for 10 years – section 171B(3)), but it was established in the Court of Appeal decision in Arun that where a breach of condition results in the property being used as a single private dwellinghouse, it is the 4-year rule that applies, because it comes within the scope section 171B(2), rather than section 171B(3). It is important, however, to understand that this applies only where the property was not already a separate private dwellinghouse (e.g. it was a ‘granny annexe’). As we have seen, most holiday lets will already qualify as a single private dwellinghouse under the rule in Gravesham.

So a breach of condition, whether it is a condition which limits the period of occupation of the property to a maximum length of stay or to certain months of the year, or a condition which prohibits permanent residential occupation, will be subject to the 10-year rule (as per Bloomfield) if the property already qualified as a dwelling under the rule in Gravesham. There will, I suggest, be very few cases in which a holiday let could not already be classified as a single private dwellinghouse, but in a case in which a holiday let which would not otherwise have qualified as a dwelling is converted (for example by installing any self-contained facilities that were previously missing) then the 4-year rule will apply, both to the material change of use to use as a single private dwellinghouse and to the breach of the occupancy condition (as per Arun). However, the important point to understand is that the rule in Arun will only apply if the property did not already constitute a single private dwellinghouse.

I hope that makes the point clear.


Saturday, 27 October 2012

Holiday lets may be a change of use

The judgment of the Court of Appeal in Moore v. SSCLG [2012] EWCA Civ 1202 (delivered on 18 September 2012) might appear at first sight to set alarm bells ringing for the owners of dwellings used as holiday lets, but a reading of the judgment should allay such fears for the majority of holiday lets.

The issue in this case has arisen on several previous occasions, and the relevant judgments were helpfully reviewed by Sullivan LJ in a characteristically clear and soundly reasoned judgment.

The question for the Court was whether a dwelling let out for short-term holiday or leisure use is still a single private dwellinghouse within Use Class C3. On the basis of the applicable judicial authorities, the Court rejected the notion that use as a holiday let can never be regarded as falling within Use Class C3; but the Court was equally clear in rejecting the proposition that use as a holiday let of a property which might normally be described as a dwellinghouse must always fall within Class C3. In other words, each case depends on its own facts - it is “a matter of fact and degree”.

The starting point for the definition of a dwellinghouse in this context is Gravesham BC v. SSE [1984] P&CR 142 (a case in which planning permission had been given for a “weekend and holiday chalet” but which was being used as a dwelling on a permanent basis). It must be a building which ordinarily affords the facilities required for day-to-day existence. If it meets that test, it is a dwellinghouse. However, the case on which the appellant in the instant cased primarily relied was Moore v. SSE [1998] 2 PLR 65 [no relation, and unconnected with the present case]. In that case, the outbuildings of a large country house had been converted into 10 single self-contained units of residential accommodation for the purpose of holiday lettings. Nine of the units were in use by May 1991. In May 1995 the LPA issued an enforcement notice alleging a material change of use from residential to mixed use for residential and as 10 units of holiday accommodation. If the change of use of each of the units was a change of use to a single dwelling, then the enforcement notice was not served within the 4-year time limit prescribed by section 171B(2).

In the section 174 appeal in that case, the inspector had found as a matter of fact and degree that each unit was self-contained and was supplied with the facilities necessary for daily life, including living, sleeping and eating space, kitchen, bathroom and WC. The units were each available for short term lets. However, he concluded that they were not used in the normal sense as independent residential units. Their use for holiday accommodation was, in his opinion, materially different to the use of premises by a household as a long term home. The High Court rejected an appeal against this decision, but the Court of Appeal overturned the Secretary of State’s decision. The Court accepted the approach taken in Gravesham, and held that there is no requirement that before a building can be described as a dwellinghouse it must be occupied as a permanent home.

There had in the meantime been another case (Blackpool BC v. SSE (1980) 40 P&CR 104) which had not been referred to in Moore. A house had been used by the owner as a second home for holidays by himself and his family, by members of his office staff, and by “family groups” who paid rent. There were lettings for a rent for 10 out of 18 weeks in the four-month holiday season; for the remainder of the year the premises were left empty. The LPA had served an enforcement notice alleging change of use from use as a private dwellinghouse to use for holiday lettings on a commercial basis. In the appeal against the enforcement notice, the inspector accepted that there had been no change of use and the enforcement notice was quashed. The LPA appealed against this decision to the Divisional Court, but their appeal was dismissed. The LPA argued that the inspector was wrong in approaching the matter on the basis that “if the house is occupied by one family, the house is residential and therefore in accordance with the permitted use as a dwellinghouse”. However Ackner LJ held that what the inspector had found as fact here was that the character of the user from a planning point of view had not been changed by the fact that the premises were being occupied not only by the owner and his family but also by his friends or by members of his office staff or by paying tenants on short holiday lets. This was a finding of fact that was not open to challenge.

After reviewing these judgments in the present case, Sullivan LJ held that whether the use of a dwellinghouse for commercial letting as holiday accommodation amounts to a material change of use will be a question of fact and degree in each case, and the answer will depend upon the particular characteristics of the use as holiday accommodation. Neither of the two extreme propositions – that use of a dwellinghouse for commercial holiday lettings will always amount to a material change of use, or that use of a dwellinghouse for commercial holiday lettings can never amount to a material change of use - is correct. However, the inspector was entitled to find (as a matter of fact and degree) in this case that the way in which the property was being used fell outside the definition of a C3 use in the Use Classes Order.

What made the instant case unusual was the fact that the dwelling in question was very large (with 8 bedrooms) and could accommodate as many as 20 guests at any one time. Large groups of people (who were not family groups) stayed there, with all the associated comings and goings, vehicular movements and parking, and the noise and general disturbance inevitably associated with such a use. It was undoubtedly this factor that prompted the LPA to take enforcement action, and which led to a finding of fact on the part of the Inspector that a material change of use had taken place.

Whilst no hard and fast rule can be laid down, I think it is reasonably safe to assume that a holiday let comprising accommodation which would sleep, say, up to to 6 to 8 people, and is therefore likely to be occupied by family groups who, during their stay, constitute a single household, will in all probability still fall within Use Class C3, and so there will be no material change of use where the property was previously used as a family home. However, if the property is more in the nature of the property in the Suffolk Coastal (Moore) case, with a larger number of guests staying at any one time, then this may well constitute a material change of use to a sui generis use (a use of its own kind). Where such a change of use has occurred, it will be the 10-year rule (not the 4-year rule) that will apply in relation to any claimed immunity from enforcement.


Tuesday, 23 October 2012

Here we go again!

Planning professionals will be well aware by now that the Growth and Infrastructure Bill was introduced in Parliament last week. My colleague David Brock was quick off the mark with some initial reactions (see the link to his blog on the left-hand sidebar on this page).

I have not yet had a chance to look at the Bill, but will comment on it as it proceeds through the legislative process. This is the fourth piece of major planning legislation within 10 years, the previous Bills having been passed in 2004, 2008 and 2011. From comments I have already seen from other planning professionals, this one might more accurately be called “the Death of Localism Bill”, but then I have always said that the concept of localism was inconsistent with the government’s growing enthusiasm for economic growth through development. (I always thought 'localism' was a silly idea anyway.)


Friday, 19 October 2012

Extended PD rights for home-owners

One of the advantages of writing this blog and dealing with comments is that it provides me with excellent CPD! While I was taking a break from work during the past 10 days, a comment was received from ‘Toyzar78’ in response to my post of 24 September – ‘Pickles says “Sue the Council”!’. He points out that under Art. 5(13), Uncle Eric has the power to cancel or modify an Article 4(1) Direction made by an LPA at any time, in any event. Toyzar78 adds that Art. 6(3) & (4) prevents him from doing so within conservation areas and listed buildings, but he had assumed LPAs were not threatening to apply Directions solely within such locations.

This prompted me to refresh my memory of the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2010 (SI 2010 No.654). Toyzar78 is right in pointing out that the S of S has power under Art. 5(13) to make a direction cancelling or modifying an Article 4 Direction at any time before or after its confirmation by the LPA. As he points out, Art 6(3) prevents the S of S from using this power in respect of certain classes of PD in a conservation area. Art 6(4) also prevents the S of S from modifying (but not from cancelling) an Article 4 direction which relates to a listed building (if it does not relate to land of any other description). But as Toyzar78 points out, this won’t make much difference in practice.

So Uncle Eric will have the whip hand after all, and can promptly overrule any Article 4 directions which seek to remove the extended PD rights he intends to create. LPAs are obliged to give notice of Article 4 directions to DeCLoG, and cannot confirm them for 28 days or such longer period as the S of S may specify following notice of the draft Article 4 direction having been received by DeCLoG from the LPA. We can therefore expect a sort of ministerial ping-pong match with Uncle Eric lobbing the ball back over the net every time an LPA seeks to make an Article 4 direction in an attempt to remove the extended PD rights.

However, this assumes that the extended PD rights will actually be granted by an amendment to the GPDO. At the moment this seems slightly doubtful in view of the chorus of dissent with which the announcement of the government’s intentions has been greeted. However, if the proposed amendment does go ahead, some ministerial inconvenience could be avoided by modifying Articles 5 and 6 of the GPDO at the same time, so as to re-establish the requirement for ministerial confirmation of Article 4 Directions to which objections have been made.

I wouldn’t like to predict what the ultimate outcome may be, but if the government does press ahead with its intention to allow larger domestic extensions to be built (albeit for only a limited period), it seems that LPAs may not be able to thwart the government’s intentions as easily as I had originally assumed. As to the government’s timetable for this proposed change – it’s anyone’s guess. Maybe the amending Order could be laid before parliament just before the Commons rises for the Christmas recess!

[I was trying to add an update to this item, but the whole item then got lost in the system (!), and so is being reposted here. We are promised that a consultation draft should soon be published. The Planning Minister is still very bullish about this, despite mounting opposition, and says that the right to build enlarged extensions may be prolonged beyond the original three-year period and could even become permnanent.]


Tuesday, 9 October 2012

Crowd-pleasing at the Tory Party Conference

Ministers have been queuing up all week in Birmingham to announce little nuggets of policy calculated to please the party faithful (even if it leaves the rest of the electorate profoundly unimpressed). Thus we have had promises from the Minister of Justice to change the law so that we can all ‘have a go’ at burglars, promises of more road building from the Transport Secretary, and from Uncle Eric the promise of a brand new enforcement power – INSTANT stop notices!

This appears to have been in direct reaction to the Dale Farm case (which Pickles mentioned by name, if slightly inaccurately). Any nastiness aimed at disadvantaged and downtrodden members of the community can always be relied upon to raise a cheer from the Tory faithful at their annual shindig. And no group offers a more tempting target for those of a right-wing frame of mind than gypsies and travellers.

Pickles’ avowed target was those travellers who take the law into their own hands by moving onto land (sometimes as trespassers, but quite often after having bought it themselves) without seeking planning permission. This is undoubtedly a breach of planning control, but the travellers would no doubt point out that they often have little practical choice in face of the chronic shortage of legal sites. Local planning authorities have failed over many years to designate sites for gypsies and travellers, and Pickles compounded this soon after taking office by removing the legal duty that councils had to provide sufficient sites in their area.

Pickles intends to give councils greater powers to prevent travellers setting up a campsite without planning permission. What he announced at the conference was “ new rules for councils to literally stop those caravans in their tracks.” Pickles clearly has only a tenuous grasp of what he was announcing. He claimed that new instant stop notices “will allow councils to issue unlimited fines for those who ignore planning rules and defy the law” and he added - "We will stand by those who play by the rules and use the full force of the law against those who break them."

So what does this mean in practice? The first point to bear in mind is that a new kind of stop notice will require primary legislation, so this change will have to await a suitable Bill in which it can be incorporated. The promised ‘Economy Bill’, expected to be introduced this autumn, might possibly provide Pickles with a convenient legislative vehicle.

The next question is precisely how and in what circumstances this new power will operate. One correspondent suggested to me that I should dub this item “50 shades of Stop Notice”. We already have Temporary Stop Notices, and it is difficult to see what additional power the new Instant Stop Notices will give local planning authorities that they do not already have.

Finally, there is the nonsense (and I assure you it really is total nonsense) about councils issuing unlimited fines for those who ignore planning rules and defy the law. Councils do not issue fines. Fines are imposed by the criminal courts as a punishment following the conviction of a defendant who has committed a criminal offence. Pickles may think he is going to make new law, but this is simply a rather garbled version of current legal rules. Failure to comply with a stop notice is a criminal offence, and so the local planning authority will then have to launch a prosecution in the magistrates court (or in the Crown Court, as it is an ‘either way’ offence). A recent change in the law already enables the courts to impose an unlimited fine for this type of offence, but the courts are constrained by very strict sentencing guidelines, which they are legally obliged to follow. So, when all the relevant factors are taken into account, the fines handed down may be somewhat more modest than Pickles seemed to imply.

So to summarise - councils already have the power to serve a temporary stop notice, followed (within 28 days) by an enforcement notice. The new ‘instant’ stop notice will represent no practical change, unless the new ‘instant’ type of stop notice is divorced from the requirement to serve an enforcement notice within some stated time limit (in which case, expect some hard fought litigation over the legal propriety of serving the ‘instant’ stop notice). Furthermore, the further legal steps - prosecution, and possibly injunction proceedings under section 187B - will remain exactly the same as they are now. Pickles may be very pleased with the reception he got at the Tory Party Conference, but the rabbit he appeared to have produced out of his hat was an illusion. More important, it was entirely unnecessary, in view of the powers that local planning authorities already have to deal with these matters.

And as for putting an end to the sort of litigious saga that arose in the Dale Farm case, Pickles was seriously misleading his audience if he really thinks he can prevent that sort of litigation happening again. No amount of extra powers will prevent travellers from fighting for their rights. The only way to put a real stop to illegal encampments, and all the trouble that ensues, is to ensure that enough legal sites are provided for gypsies and travellers in the first place. The Secretary of State (in practice the planning casework team in De-CloG) has been robust in allowing appeals where LPAs cannot demonstrate a 5-year housing land supply. A similarly robust approach should be taken where councils cannot demonstrate a similar provision for gypsy and traveller sites in their area. The message should be – either find the sites yourselves, or we will find them for you.


Cala Homes wins at last

In case you hadn’t picked up on the news, the Secretary of State granted planning permission last week for the 2,000-home development by Cala Homes at Barton Farm, Winchester. This was a re-determination following the quashing (by consent) by the High Court of the original ministerial decision rejecting the scheme.

An inspector had originally recommended approval, but the Secretary of State rejected his inspector’s view on the grounds that it was premature in advance of the emerging development plan. De-CLoG accepted that they had erred in law in doing this. By contrast with the department’s previous stance, limited weight was attached to Winchester’s draft core strategy this time round, on the basis that there are various objections outstanding to the applicable policies, which have yet to be considered. But the clincher seems to have been that Winchester has now allocated Barton Farm in its core strategy as a site for 2,000 homes, albeit reluctantly.

The reason for the apparent volte-face is that, as in a number of other cases where LPAs have lost appeals, Winchester is unable to demonstrate that it has a five-year supply of housing land. A significant element of affordable housing (40%) is included in the scheme, and this appears to have been a further factor favouring approval. The scheme was also found to be in line with the presumption in favour of sustainable development in the NPPF.


Wednesday, 3 October 2012

Run it up the flagpole!

It’s good to know that the Secretary of State has got his eye firmly on the ball, and that he will leave no stone unturned in his unremitting efforts to restore Britain’s ailing economy.

The whole world will therefore stand back in wonder and amazement at the latest announcement from De-CLoG, confirming the relaxation of the Advertisement Control Regulations to allow more flags to be flown in future. These changes have, of course, been announced on at least two previous occasions. (Ministers love to make announcements; it makes it look as though they are actually doing something, and so it is not unusual for new initiatives, even of the most trivial nature, to be announced at least twice and sometimes on three or four separate occasions.)

I could not have invented Uncle Eric’s words even in my wildest flight of satirical fancy. He is reported as having said of this dynamic and decisive ministerial action: “Flags unite communities across colour, creed and class, so I am cutting municipal red tape to make it easier to fly Britain's varied and diverse flags without state interference. I've been celebrating this sense of patriotic pride by flying a range of flags outside my Department in recent months and look forward to seeing more flags flying around the country with the relaxation of these rules." [Memo to Westminster City Council – This was before the law changed, so Pickles was committing a criminal offence. Prosecute the man, I say!]

So even though the Olympic Games are now behind us, we can keep the warm afterglow going by putting out the flags, by courtesy of the greatest of our Secretaries of State.

As for the details, you can start flying the extra flags on 12 October. The new rules are set out in the Town and Country Planning (Control of Advertisements) (England) (Amendment) Regulations 2012 (S.I. 2012 No.2372). There are, of course, various conditions and limitations – after all, the bureaucrats must have something left for them still to do. So don’t run away with the idea that you can now fly any old flag wherever you like.

Class H of Schedule 1 (adverts that are exempt from control altogether) has been slightly, but not dramatically, widened. The previous version of the Regulations allowed the flag of any saint to be flown. Now, following these changes, this is confined to the flags of St David and St Patrick. Obviously the flags of St George and St Andrew are also included, as national flags, but what about the flag of St Paul (frequently flown by churches within the Diocese of London), for example, or the flags of other saints denoting various Church of England dioceses. Would these count as ‘the flag of any parish’? I am not sure that they would, unless they happen also to be the flag of one of the other administrative areas listed in this class. Diocesan flags don’t seem to feature in this list as such. So, enforcement officers – be alert! And be prepared to prosecute any vicar who has the effrontery to fly the flag of an unauthorised saint, in breach of the law.

Class 7 in Schedule 3 (adverts which have deemed consent) is also enlarged, but again only slightly. The main change here is the ability to fly flags other than from a flagpole on the roof of a building. And, yes - as promised, you can fly it at any angle you like (even suspended upside down!), provided it is not in a conservation area, AONB, National Park or area of special advertisement control.

If you want more details, you will have to look it all up for yourselves. The main point is that the rules controlling flag-flying have been relaxed only slightly and that they are still hedged around with various ifs and buts.

After all this exhausting effort to change the rules on flying flags, the Secretary of State can now take a well-earned rest, secure in the knowledge that he has done his bit for Britain on behalf of our wonderful and much-loved coalition government.