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.



Rick said...

Perfectly clear Martin, thanks

Beeches Holiday Lets said...

Useful to know, thanks for sharing these queries from Rick.

Maria Ferguson said...

I'd be interested to know how you think this affects the immunity periods where there has been a breach of condition. The case I have in mind, there is a condition applied to the change of use of an attached building to ancillary living accommodation, but the building has since been used as a holiday let. Relying on SoS v Arum and Brown (2007) EWCA, were this a separate dwelling it would be the 4 year rule. However, could it be argued that ion this case there had not been a change of use to a dwellinghouse, because short term holiday lets are not a dwellinghouse?

Martin H Goodall LARTPI said...

This one had me scratching my head. I can see argumenmts which could put it on either side of the lien. I think we would have to be instructed to advise on a professional basis in order to be able to answer the question properly.

Anonymous said...

I've just had a letter from the local MP who had been asked by a constituent about this issue, taken advice from The Planning Minister and DCLG and has advised that DCLG are of the opinion that there is a change of use when a family home becomes used as a holiday let. Surely this can't be correct, I can't find anything of NPPG to this effect and if so the enforcement of such in high volume tourist areas would be a nonsense of immense proportion. Any comments??

Martin H Goodall LARTPI said...

I seem previously to have overlooked the anonymous query of 1 July 2016.

I am inclined to agree that DeCLoG is wrong about this. A change of use would only take place if the house were to be turned into a hotel or guest house (e.g. ‘bed and breakfast’). If the house continues to have all the attributes of a single private dwellinghouse, and if it continues to be used within the parameters of Use Class C3 (including occupation by a single family at any one time or by not more than 6 persons forming a single household), then there would appear to have been no material change of use. The position, however, may be different in the type of situation encountered in Moore (as described in “Holiday lets may be change of use” (Saturday, 27 October 2012).)