Breaches of planning control – the need for continuity (5)

The provisions of section 171B have caused quite a lot of doubt and difficulty over the years, and there are still one or two anomalies that have not been entirely ironed out. We can at least be confident about the straightforward operation of section 171B(1) relating to operational development. The only issue that needs to be considered is the date when the development was substantially completed (as per Sage), and it is entirely logical that if you want an LDC regarding operational development under section 191(1)(b), the building or other operational development must still be in existence at the time when the application is made. You cannot apply for an LDC for the lawfulness of a building that has ceased to exist, whatever the reason for its demise.

What clearly emerges from the cases involving section 171B(2) and (3) (and section 191(1)(a) and (c)) is that a very clear distinction has to be made between breaches of planning control involving a material change of use and those involving a breach of condition. There is no doubt at all that, in order to become immune from enforcement, a breach of condition must be continuous. In the case of occupancy conditions, even a void period (other than a temporary stopping and starting, for example between tenancies) will bring the breach of condition to an end, and resumed occupation in breach of the condition will be a fresh breach of that condition, with the clock starting again from zero.

It is important to remember that if a breach of condition becomes immune from enforcement and therefore lawful, even where an LDC is issued to that effect, that immunity will still be lost by any subsequent compliance with the condition, for example by a void period where the condition in question is an occupancy condition (other than a purely seasonal condition –see N Devon DC v FSS and Stokes (2004), which I cited earlier). Lawfulness of the breach of condition, even when confirmed by an LDC, does not remove the condition, so that the lawfulness of the breach will continue only so long as the breach of condition continues.

This is to be contrasted with the position where the breach of planning control comprises a material change of use. Here, continuity of the use is clearly required in order to attain immunity (and therefore lawfulness), but it is clear from Panton that upon lawfulness being achieved under section 191(2) (and the operation of that sub-section does not depend on the issue of an LDC) subsequent continuity of the use is no longer required, so long as any later cessation in the use does not amount to abandonment or is not brought about by some other supervening event in planning terms (see Hartley and Pioneer Aggregates cited in an earlier part of this article). What Thurrock and Swale established, on the other hand, is that those earlier authorities have no application during the period when immunity has not yet been achieved under either the 4-year or the 10-year rule (as applicable).

There are certain points that emerge from the decided cases that need to be borne in mind. First, in the case of changes of use at least, the relevant period in respect of which immunity from enforcement is acquired is the period of four years or ten years “beginning with the date of the breach”. It is abundantly clear from this wording that it is entirely wrong to talk in terms of a ‘rolling period’ of 4 years or 10 years so far as a change of use is concerned. The relevant period in this case does not end with the section 191 application or with the service of an enforcement notice under section 172. It is equally wrong to think in terms of the ‘breach’ continuing until one or other of those events.

It is apparent that there has from time to time been some woolly thinking on this point, or at least some rather loose and imprecise use of language. What emerges from the decided cases discussed in earlier parts of this article is that, following the relevant period of continuous breach so as to achieve immunity from enforcement (whereby the change of use becomes lawful), uninterrupted continuity of the use is not thereafter necessary (as discussed above, see Panton), but that the use must be current at the time of making an application under section 191(1)(a). It is incorrect to talk of the ‘breach’ continuing at that date, because the breach of planning control ceased upon the use becoming lawful at the end of the 4/10-year period beginning with the date of the breach.

It is entirely logical that the use must be current at the date of the application under section 191(1)(a), just as a building must be in existence at the date of an application under section 191(1)(b); otherwise there is nothing that an LDC can properly certify. But it is entirely erroneous to assume on this basis that the ‘breach of planning control’ (the change of use) must have been continuous for a ‘rolling period’ ending with the date of the application. In accordance with the rule in Panton it is entirely possible that, following lawfulness having been achieved by continuous use for 4 or 10 years beginning with the date of the breach, there may then (quite legitimately) have been some subsequent interruption in the use which is of no legal effect in terms of the lawfulness of the use. These points clearly emerge from the judgments cited in the course of this article.

The one remaining point that may require clarification is the situation where there is a material change of use followed by, say, two years’ continuous use, then a cessation of the use for, let us say, a year, followed then by a resumption of the use for (in a 10-year rule case) 11 years, followed thereafter by further intermittent use for the same purpose, but no other intervening use or supervening event, with the use once again being current at the date when an LDC application is made.

We know from Thurrock that the break of continuity after the first two years will have prevented immunity having been acquired from the date of the original change of use, but how are we to treat the resumption of the use after the cessation of that use for a year, bearing in mind that section 171B(3) provides that no enforcement action may be taken after the end of the period of ten years “beginning with the date of the breach”? The answer, I think, must be that the original change of use must be entirely discounted, so that the date of the breach for the purposes of the 10-year rule must be taken to be the date of the resumption of the use after the end of the one-year cessation of that use. This must for the purposes of the Act be taken to be a fresh change of use and thus an entirely fresh breach of planning control.

I appreciate that during the one-year cessation in the use the property may well have retained fixtures, fittings and equipment associated with the original change of use, and it might perhaps be argued that for that reason the original breach of planning control had not been remedied when the use was suspended after the first two years. It would seem from various judicial dicta, however, that it would not be open to the LPA to serve an enforcement notice during the period that the use was in abeyance, even though removal of the fixtures, fittings and equipment associated with the original change of use could both before and after the interruption in the active use of the property have legitimately been included in the requirements of an enforcement notice (see, for example, Somak Travel Ltd v. SSE [1987] JPL 630), the point being that the requirements of the notice can go beyond the scope of the actual breach itself to encompass items not constituting part of the actual breach of planning control, i.e. matters which in themselves would not amount to development.

It follows that, in the case I have predicated above, the “date of the breach” with which the 10-year period commenced must be the date on which the use resumed after the year-long cessation in the use. There was then (in my example) an 11-year period of continuous use, as a result of which immunity from enforcement (and consequently lawfulness) was undoubtedly achieved. Thereafter the rule in Panton (following Hartley and Pioneer Aggregates) will have operated so that any subsequent discontinuity in the use will not have affected the position, provided that the use is actually current at the time of the LDC application under section 191(1)(a). For all these reasons, in the case I have imagined an LDC would undoubtedly have to be issued.

There are just a couple of other loose ends. As I noted in discussing Swale earlier, that case turned to a significant degree on the inspector’s treatment of the evidence. However, no mention is made in the judgment of the well-known rule established by Gravesham B.C. v. SSE (1984) P.& C.R. 142, that where a change of use to use as a dwelling is alleged to have occurred the building must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood, that is to say, as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence. There must at the very least have been a question mark in this regard over the alleged barn conversion in the Swale case.

Finally, despite the numerous references in the decided cases to the need for continuity of use, even Thurrock (which went into the matter more deeply than the other reported cases) did not address the problem of deciding whether or not the use had in fact continued throughout the 10-year period. In other words, what actually constitutes a discontinuity in the use? It is, of course, ‘a matter of fact and degree’ in each case, but there is still a significant degree of uncertainty as to precisely what incidents might constitute a discontinuity in the use for the purposes of the 4/10-year rule. There is similarly some remaining uncertainty as to exactly what amounts to “occupation” in relation to the continuity of a breach of condition relating to an occupancy condition.

THE END

© MARTIN H GOODALL

Breaches of planning control – the need for continuity (4)

The first of the judgments I mentioned in this extended article (Nicholson) related to a breach of condition, and this is a type of breach that has troubled the courts on several other occasions, particularly with regard to occupancy conditions. The previous judicial authorities on the topic were helpfully reviewed in the judgment in Ellis v. SSCLG [2009] EWHC 634 (Admin).

This case had been the subject of an LDC application which had been dismissed on appeal by an Inspector. Between 1961 and June 2000 a cottage was occupied in breach of an agricultural occupancy condition. From June 2000 to October 2001 the cottage was vacant while it was being renovated. From October 2001 to July 2003 the cottage was again occupied in breach of the occupancy condition. From July 2003 to October 2003 the cottage was unoccupied during a gap between tenants. From October 2003 to November 2006 the cottage was again occupied in breach of the occupancy condition. From November 2006 to March 2007 the cottage was unoccupied. In particular, it was unoccupied at the date when the LDC application was made.

There had undoubtedly been more than 10 years’ uninterrupted breach of the condition from 1961 to 2000, so that by that time immunity from enforcement had long since been achieved in respect of that breach of the condition. However, this case illustrates the important distinction between a breach of condition and a change of use, where the rule in Panton would have applied after 2000 in the absence of subsequent abandonment of the use. As the deputy judge emphasised, Panton did not concern a breach of condition as Ellis did.

The deputy Judge in Panton had held that, if immunity from enforcement is acquired in respect of a material change of use, that immunity could only be lost by abandonment, by the formation of a new planning unit or by a further material change of use. That was based upon well-established principles of planning law: see Hartley v MHLG [1970] 1 QB 413, at pp. 420-421 (Lord Denning MR); and Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, at pp. 143-144 (Lord Scarman). However the deputy judge in Ellis accepted the submission for the Secretary of State that material changes of use are to be treated in a different way from breaches of condition and that this distinction was recognised in Panton itself.

Reference was also made to the earlier judgment in N Devon DC v. SSE and Rottenbury [1998] PLCR 356, which was another AOC case. In that case, the dwelling was adapted for holiday accommodation for short lets between May and September each year. In the period from October to April the premises were not occupied at all. An LDC was sought on the basis that the cottage had been used as a holiday cottage for more than 10 years without complying with the AOC. In an appeal against the LPA’s refusal to grant an LDC, the Secretary of State granted the certificate, because “such seasonal occupation, while intermittent, could nevertheless be regarded as part of the normal, regular pattern of use of the property as a dwelling-house for holiday accommodation in breach of the condition, which, in the absence of any evidence of alternative or intervening uses remains subsisting throughout any period of non-occupation, and is not therefore considered to have given rise to a fresh breach of the condition each year”.

The deputy judge in North Devon concluded that there would normally be no breach of the AOC (which clearly required that the premises were not to be occupied otherwise than by persons employed or last employed locally in agriculture) if the premises were vacant in the sense of not being occupied by anybody. Counsel for the Secretary of State, in seeking to defend his appeal decision, had submitted that “occupation is a function of use”, but the court held that the two terms should not be elided, and it was on this basis that the appeal decision was quashed.

In North Devon, the deputy judge did nonetheless opine that “clearly, continuous physical occupation is not require for there to be occupation in breach”. However, beyond that brief comment, he declined to indicate any guidelines on the interpretation of the word “occupation”.

Reference had been made in that case to an earlier judgment in Mitchell v. SSE [1992] JPL 553. The deputy judge in North Devonfound the cited report unhelpful (due to the apparent lack of reasoning, at least as reported), but the deputy judge in Mitchell had at least found that the inspector in that appeal had not misunderstood the concept of occupation when he concluded that the AOC was not offended, even though the owner (who was a retired person “last employed in agriculture”) in fact lived in Spain but kept some of his furniture in the house. It was the owner’s son (not employed in agriculture) who actually lived in the house. There was no breach of the AOC because the person in “occupation” within the meaning of the condition was the owner. He satisfied the condition. He was in control of the property. He was the person in “occupation” until March 1986, when it was then let to someone else. It had been argued on behalf of the LPA that the inspector had wrongly introduced the test of “possession” or “control”, but other than rejecting that submission, the deputy judge had not explained the point. In retrospect, it appears that little reliance can be placed on Mitchell, which does not appear to be consistent with other more recent decisions.

North Devon was subsequently the claimant in another case involving a breach of condition. This was N Devon DC v FSS and Stokes [2004] 3 PLR 62. That case involved a condition restricting the occupation of bungalows to the period between March and November each year. A CLEUD was sought in circumstances where the bungalows had been occupied all year round for a period of ten years. The council asserted that there were separate breaches every year and relied upon Nicholson to support a submission that those breaches could not be aggregated to constitute the necessary ten-year period. Sullivan J (as he then was) rejected that submission, holding that it was not appropriate “mechanically” to apply the dicta in Nicholson to cases involving conditions that could not be breached throughout the year. This case was clearly distinguishable from the AOC cases.

Reference was also made in Ellis to the Court of Appeal’s decision in Fairstate Ltd v FSS [2005] EWCA Civ 283. That case did not concern a breach of condition so much as a material change of use, by reason of the operation of the section 25(1) of the Greater London (General Powers) Act 1973, as amended, which provided that for the purposes of what is now section 55(1) of the 1990 Act, the use as temporary sleeping accommodation of any residential premises in Greater London (defined by the Act as less than 90 days) involves a material change of use of the premises and of each part of the premises which is so used.

In Fairstate the question at issue (as Ward LJ put it in his judgment) was “what if any breach of planning control occurs where the use to which a London flat was put changed over three stages – (1) for more than ten years as temporary sleeping accommodation which made that unauthorised use lawful, but (2) with a change for about five months to longer-term residential occupation, and finally (3) reverting back for the next four years to temporary sleeping accommodation.” It was common ground between the parties in that case that, at stage (1), use of the flat for temporary sleeping accommodation was a material change of use that had become a lawful use by virtue of section 191(2) of the 1990 Act. Nevertheless, it was held by the Court of Appeal that the change from stage (2) to stage (3) (from permanent back to temporary sleeping accommodation) was a further breach of planning control in respect of which enforcement action could be taken.

Fairstate clearly turned on the particular effect of the 1973 Act in Greater London. It is an example of one change of use, which had become immune from enforcement and therefore lawful, being ‘killed off’ by a further change of use, so that when a third change of use took place, this was a fresh breach of planning control that could not benefit from the lawfulness of the earlier identical change of use, even though such changes of use would not have been material in planning terms if they had taken place outside Greater London. Fairstate clearly did not assist the claimant’s case in Ellis, and is unlikely to be of any assistance in other cases, not least because (as the deputy judge in Ellis pointed out) the legal issue which arose in Nicholson, and had been raised again in Ellis, was not before the Court of Appeal in Fairstate, namely whether the relevant breach of planning control must subsist at the time of an application for a CLEUD.

If you have followed the various judicial authorities cited in previous parts of this article, it should come as no surprise that the claimant's case in Ellis was unsuccessful.

I propose to leave it there for today, and to make some general observations and draw some conclusions in the next and final part of this article.

© MARTIN H GOODALL

Breaches of planning control – the need for continuity (3)

I turn now to the change of use of a building to use as a single dwelling, to which the 4-year rule applies under section 171B(2). What this sub-section actually provides is that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. Thus, apart from the different time limit for enforcement action, this provision is precisely the same in its wording and effect as section 171B(3) relating to other changes of use.

The practical interpretation of this sub-section was considered by the Court of Appeal in Swale BC v. FSS [2005] EWCA Civ 1568. In a re-determined planning appeal (the third after two previous decisions had been quashed in the High Court) an Inspector had decided that the claimed residential use was then immune from enforcement because the time for such action had expired. Referring to the Court of Appeal decision in Thurrock Keene LJ observed that there was no dispute that, as a matter of law, the owner had to show not only that the change of use to residential use had occurred four years or more before 6th March 2001, but also that residential use had continued throughout that four year period.

In Thurrock Schiemann LJ had made the point that an enforcement notice requires the breach of planning control to be remedied, but if the new activity ceases the breach will be regarded as having been remedied. Moreover, he emphasised that the concept of abandonment which had been central to the Inspector's reasoning in the Thurrock case had evolved in respect of established use rights (that is to say rights which have already been established) and not in respect of a use, the continuity and lawfulness of which was in issue.

Also in Thurrock, Chadwick LJ had agreed that the Inspector had needed to ask whether the use in question had been continuous during the period and he too rejected the Inspector's approach of asking whether the use, having been commenced, had subsequently been abandoned.

In the Swale appeal, the Inspector had found that residential use of the building had begun during occupation by a predecessor, between about March 1995 and February 1996, at which point that person had ceased to own the property. The Inspector also found that it was in full-time residential occupation from the year 2000 onwards. Neither of those findings of fact was challenged. It was his approach to the intervening period which was the basis of the Council's case that the decision was flawed.

What the Inspector had to focus on was the period from 6th March 1997 to 6th March 2001. The owner’s own evidence at the inquiry was that he had bought the site in 1996, did not move in straight away but visited regularly to do improvement works. In the first part of 1997, he lived partly on the site (as distinct, it seems, from the barn the subject of the appeal) and partly in a house in Maidstone. From late summer 1997 the site (although not necessarily the subject building itself) became his only home. Someone helping with work on the barn also moved to the site in 1998, living partly in the barn and partly in a freestanding mobile home. Between September 1998 and May 1999, the owner was legally required to live at Maidstone but after May 1999 he lived at the site, sometimes in the barn, sometimes in the freestanding mobile home.

The way that the Inspector had approached the matter had been that there had been an erratic pattern of use of the barn over a two or three-year period after 1996. However, once initial repairs were carried out, the barn appeared to have been fitted and available for residential use from then onwards. The Council acknowledged a residential use from 2000 onwards. The Inspector found that there was no substantial evidence that since the previous occupation of the barn (between March 1995 and February 1996) the barn was used for any purpose other than residential, except from time to time for minor storage connected with the use of the site as a whole.

There had been a lack of reference to the residential use in some planning applications and correspondence that the owner had with the council. However, during part of the relevant period, the owner had a difficult and complicated personal life and the Inspector accepted that these factors affected both his use of the site and the control that he was able to apply to the work being carried out there. The Inspector had no doubt that the barn was in full time residential occupation in 1995/6 and again from 2000. In the period 1997 to 1999 the evidence indicated substantial work on the barn to complete its conversion for residential purposes, as well as on the remainder of the site. The owner and several other people were involved in this work and frequently slept in the barn for substantial periods. The Inspector was aware of no evidence of any intention to abandon the residential use of the barn. Indeed, the main intention appears to have been to improve it to allow for full-time occupation as the owner's home.

In his decision letter, the Inspector went on to say that he had borne in mind the meaning of residential use described above, but he opined that the failure to occupy a building for a period with no other use being introduced does not often mean that residential use has ceased. He therefore concluded on the balance of probability that residential use of the barn as a single dwelling house began more than four years prior to the date of submission of the LBC application and had continued since then without significant break.

In challenging this decision, the Council relied on the Court of Appeal’s decision in Thurrock, and contended that the Inspector erred in law in using the concept of abandonment of a use and took into account immaterial considerations by applying that concept and by relying on the fact that no other use had been introduced. Counsel for the LPA laid stress on what was said in Thurrock about abandonment being a concept relevant only to already established use rights, but not to whether there had been continuity of use so as to achieve immunity under the 4/10-year rule. The council contended that the same was true of the Inspector’s finding as to whether or not an alternative use had been introduced. The only proper question, they submitted, was whether the building was in continuous use for residential purposes throughout the 4-year period beginning with the breach, so that the Council could have served an enforcement notice at any time during those four years.

The council argued in particular that it is wrong to distinguish the use in the Thurrock case, which was the use of land as an airfield, from the use of a building as a dwelling. In both cases, it was argued, there has to be activity for the use to exist. If there are long periods of absence from the building, there is no activity and hence no use is continuing. It was submitted that this was the case here. The mere presence of personal effects and the connection of services such as water and electricity would not suffice, it was argued, especially in a building which was not physically a dwelling house. Nor, it was contended, was it enough, as the Inspector appeared to have thought, for the building to have been occupied "for substantial periods". The council criticised the Inspector's statement that "failure to occupy a building for a period with no other use being introduced does not often mean that residential use has ceased". They pointed to the evidence that the owner was not himself in occupation for the eight months between September 1998 and May 1999 and that the barn was not lived in between Christmas 1997 and May 1999. It was not occupied in 1998. Notwithstanding this, the Inspector had found that residential use had been continuous throughout the 4-year period, which was perverse, and it showed that the Inspector was over-influenced by the concept of abandonment.

The Secretary of State sought to defend his Inspector’s decision. The Inspector had found as a matter of fact and degree that the residential use began more than four years before the relevant date "and has continued since then without significant break" (a finding of fact that would not ordinarily be open to legal challenge). The Inspector, it was argued, was not applying any presumption of continuity and was not using the concept of abandonment, except in order to reject something which would have been fatal to establishing a four-year use.

Furthermore, the Secretary of State argued, some uses of land involve more fluctuations in activity than others. An airport use will see little or no fluctuation in the activity taking place, whereas a dwelling house use is likely to involve periods where a building is not actually being occupied; for example, at weekends or holidays. It was contended that the presence of furniture and personal effects is relevant to the question of use (relying on cases dealing with the seasonal use of land, such as Webber v MHLG [1967] 3 AER 981).

It was accepted on behalf of the Secretary of State that the critical period of time was 6th March 1997 to 6th March 2001, but it was emphasised that the evidence was not concerned solely with occupation by the owner himself; occupation by others was also relevant, and it had been said that on the evidence there were confused living arrangements with various people coming and going.

The owner also sought to defend the Inspector’s decision. On his behalf it was submitted that the Inspector's findings were consistent both with the evidence and with the approach endorsed in Thurrock. Counsel for the owner submitted that it is a question of fact whether a building is being used as a dwelling house, and drew attention also to a passage in Schiemann LJ's judgment in Thurrock in which he accepted that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on - because it is the weekend or the factory's summer holiday, for instance. The land would still be properly described as being used for the objectionable activity, and Schiemann LJ had rejected a contrary submission that enforcement action can still be taken after an activity which resulted from the material change in the use of land has permanently ceased. He accepted that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity, but these were matters of fact and degree for the judgment of the decision maker in each case.

Effectively, it was argued, the Inspector in the Swale case found that the residential use had not permanently ceased during the critical period. The judge at first instance had been right to distinguish between a cessation of use on the one hand and an absence of the occupier for a time, such as for the purpose of a holiday. Counsel for the owner argued that the absence of an intention to abandon residential use was relevant because, had such an intention existed, it would have negated the continuity of that use.

Having recited the arguments on both sides at some length (but without commenting on them beyond the remarks reported above) Keene LJ made the following points. He accepted that whether a building is, or was, being used for a particular purpose at a particular time or times is largely a question of fact. But it is not, in the planning law context, wholly such. It is necessary, as Thurrock demonstrates, for the decision-maker to adopt the proper approach as a matter of law to his decision on that question. It is not always an easy question to answer. But the legally correct question for the Inspector here to have asked was whether this building had been used as a single dwelling throughout the whole of the four years preceding 6th March 2001, so that the planning authority could at any time during that period have taken enforcement action. That is a quite different question from whether a use has been abandoned, at least in the sense in which that word is normally used in planning law in the context of abandoning established use rights. Patently, when Schiemann LJ referred in Thurrock to the permanent cessation of the use, he was not intending to advocate a test similar to that of abandonment, which he had already expressly rejected in his judgment.

Keene LJ also endorsed the words of Chadwick LJ in Thurrock in which he had rejected the notion that time for the purposes of the 4/10-year rule could continue to run where a use was simply ‘dormant’ (as had been suggested in Panton), due to the difficulty in which this would put local planning authorities in having to decide whether they should take enforcement action against a ‘sleeping’ use (or face the risk of that use becoming immune from enforcement by reason of time continuing to run under the 4/10-year rule).

In dealing with the decision letter itself, Keene LJ noted that, on the face of it, the Inspector in the Swale appeal did find that residential use had begun more than four years earlier and had continued since then "without significant break", but the process of reasoning which preceded that finding was faulty. The Inspector had also found that there were periods of time during 1997 to the end of 1999 when this building was not occupied for residential purposes. He referred not only to the "erratic pattern of use", but also to the owner and others frequently living and sleeping in the barn "for substantial periods". However, that did not mean that there were not also substantial periods when it was not so occupied, and nowhere prior to his conclusion did he suggest (and nor did the evidence) that the non-occupation periods were de minimis. Nor did the Inspector ever clearly deal with what the use was, or what was happening in the building, in March 1997 when the four year period began. That was a crucial date.

What appeared to have led the Inspector to the conclusion that residential use had begun more than four years earlier and had continued since then without significant break were a number of other factors. One of those was the absence of evidence of an intention to abandon the residential use of the barn. Had that been the only troubling reference it might not have cast sufficient doubt on his process of reasoning. But there were other references which also gave rise to concern. The Inspector referred to there being no substantial evidence that during the critical period "the barn was used for any purpose other than residential", apart from some minor storage. That, however, is not the test. A building may not be in use at certain times for any purpose at all. The fact that it is not put to some alternative use does not demonstrate that it was in residential use, which is the real issue. Likewise, the Inspector emphasised that once initial repairs had been carried out "the barn appears to have been fitted and available for residential use from then onwards". That was irrelevant. The decision-maker is required to consider not the building's availability or suitability for residential use, but whether it was actually put to such use.

Those factors, relied on by the Inspector, had to be added to his reference to the absence of evidence of intention to abandon residential use. That caused his lordship concern, because a building may well not be in continuous use for residential purposes and yet the owner fully intends to resume occupation for such purposes at a future date. The existence of such an intention would not by itself entitle the planning authority to serve an enforcement notice when the building is not being residentially used. The concept of abandoning the use is, he held, best confined to the topic of established use rights where it is a well recognised concept (see Hartley v MHLG [1970] 1 QB 413).

In agreeing with this judgment, Sedley LJ confirmed the well-settled point that if a building is in an already established use as a dwelling-house, something approaching abandonment of that use will be necessary “if a break in continuity is to be shown”. [What I suspect he meant was – if that established use is to be lost.] Short of this, the law has always recognised that an occupier does not have to be continuously or even regularly present in order to establish unbroken use of the premises as a dwelling-house - see the decision of the Court of Appeal in Brown v Brush [1948] 2 QB 247; Megarry on the Rent Acts, 11th edition, Volume 1, pages 245 to 249.

Sedley LJ contrasted this with a structure that is not yet in established use as a dwelling-house at the start of the material period. In that case, such use has to be affirmatively established, not merely at the start but over the whole 4-year period. Here, logically, intermittent [‘discontinuous’] residential use is not continuous residential use. This confirms the clear view expressed by the Court of Appeal in Thurrock.

The question remained, however, whether on the evidence the Inspector could, by proper reasoning, have reached the same conclusion. Sedley LJ agreed with Keene LJ that the question was not open and shut, and would have to be determined by another inspector at yet another inquiry. Whatever the outcome, but especially if it turned out to be a fifth inquiry, his lordship drily observed that this building looked like finding a place not only in the Law Reports but in the Guinness Book of Records.

I have dealt with this decision at some length, as it discusses in more detail than any of the other judgments on this subject the issue of continuous use. The judgment confirms the basic principle that in order to show that the use of a dwelling is immune from enforcement in accordance with section 171B(2), the owner or occupier must establish not only that the material change of use to use as a single dwellinghouse took place more than four years before the date of the enforcement notice or application for a lawful development certificate, but they must also show that the use of the property as a dwelling was continuous throughout that four-year period.

However, this case like many others was nonetheless very much fact dependent, and so it would be wrong to extrapolate from this judgment points of detail that did not in the event form part of the ratio decidendi. Keene LJ’s summary of the submissions made on behalf of the council were no more than that; and he similarly summarised the submissions made on behalf of the Secretary of State and the owner. He did not pronounce any conclusion with regard, for example, to counsel’s assertion that mere absence from the building, even for some months (for example on an extended holiday), necessarily denotes a cessation of the residential use of the property. Similarly, no finding was made on counsel’s suggestion that in such circumstances there is no activity and hence no use is continuing. More important perhaps, the court expressed no opinion on counsel’s submission that the mere presence of personal effects and the connection of services such as water and electricity would not suffice to substantiate continuing residential use of the property.

I will come back to these points in a later part of this article. In the next instalment, I will mention the judgments in Ellis v. SSCLG [2009] EWHC 634 (Admin) and also R (Fairstate Limited) v FSS [2004] EWHC 1807 (Admin).

© MARTIN H GOODALL

Breaches of planning control – the need for continuity (2)

As I mentioned in the first instalment of this article, in giving judgment in Nicholson v. SSE [1998] JPL 553, the Deputy Judge made some further observations on the legal effect of section 191 in respect of uses and operations.

The Deputy Judge observed that the construction he placed on section 191 in respect of breaches of condition (as explained in the first part of this article) seemed to him to be consistent with the linked provisions in section 191 for Lawful Development Certificates in respect of uses and operations.

By section 191(1)(a) the purpose of the application in respect of uses is to ascertain whether any “existing use of buildings or other land is lawful”. It is accordingly plain (he suggested) that, in respect of uses, the use must exist at the time of the application. Note, however, that he did not suggest that the breach should still subsist at that time. I will come back to the significance of that point later.

Under section 191(1)(b), operations are, unsurprisingly, described with reference to the past, in that generally they will already have taken place. However, it is clear from the wording of the section that the building or structure (or other works) should continue to be in existence in some physical sense.

In relation to all three of these types of breach of planning control, the Deputy Judge observed that there is a necessary implication in the wording of section 191 that there is something in existence against which enforcement action might be taken if it were not for the absence of a requirement for planning permission (i.e. because it does not constitute ‘development’ within the definition of section 55), or the fact that planning permission has been granted for it, or if it were not for the expiry of the time for enforcement action. It was the view of the Deputy Judge that the natural reading of section 191 in respect of uses and operations is that the section requires that the uses or operations should exist at the time of the LDC application in the sense that he had indicated.

Turning, then, to the other main type of breach to which section 171B(3) applies – changes of use, other than to use as a single dwelling, we come next to the judgment in Panton and Farmer v. SSETR [1999] JPL 46, in which it was noted that by section 171B(3) the relevant period for the acquisition of immunity is the passage of 10 years from the date of the breach [original emphasis]. The sub-section is silent on any requirement for continuation of the use. This is consistent with the definition of development in section 55, which in relation to the use of land and buildings defines the relevant development not as the use itself, but as the material change of use by which it commences.

The court noted that under the previous (pre-1992) provisions, the Secretary of State had accepted in a number of appeal decisions that these former provisions could apply to an ‘inactive’ or ‘dormant’ use, provided that it had not been abandoned, in other words where the breach of planning control (the material change of use) by which it commenced had not been remedied, because (for example) the building, whilst not in active occupation, nevertheless remained adapted, equipped and available for resumed occupation for the unauthorised purposes. The relevant question, it would seem, is whether there remained a subsisting breach of planning control upon which an enforcement notice could bite.

As the learned Deputy Judge observed in Panton and Farmer, this principle applies to all types of breach. In the case of operational development, the unauthorised works must still exist; in the case of a material change of use, the use must still exist (although it was held in Panton and Farmer that the use might be ‘inactive’ or ‘dormant’, provided it had not been abandoned); and in the case of a breach of condition, the failure to comply with it must still subsist. An enforcement notice could only be served in respect of such a continuing breach of planning control, and equally an application under section 191 can only be made in respect of a breach of planning control (*) that still subsists at the date of the application.

[* For reasons that I will explain in a later part of this article, I would not agree that it is the “breach of planning control” as such that must still subsist, but rather the building or other works or the use of land or buildings that originally constituted a breach of planning control.]

The finding in Panton and Farmer regarding ‘inactive’ or ‘dormant’ uses was distinguished and, in part, over-ruled by the Court of Appeal in SSETR v. Thurrock BC [2002] EWCA Civ 226. This case was concerned with a non-domestic change of use (to which the 10-year rule therefore applied) involving the use of land on a farm for the landing and take-off of aircraft. Crucially, the level of use had been subject to wide fluctuations over the years. An enforcement notice was served in 1999, well over 10 years after the first flights had taken place. In quashing the enforcement notice, the Inspector specifically relied on the judgment in Panton and Farmer. The Inspector stated: “There is no need to demonstrate that a use has been in continuous existence throughout a ten-year period. Unless there has been a clear-cut change in planning circumstances, such as a grant of planning permission for an alternative use, the introduction of another use incompatible with the original use or an indication of a deliberate intention to abandon the original use then the use will survive throughout ten years.” It was on this basis that the Inspector concluded that if the appellant could demonstrate that the use of the appeal site as an airfield, on a scale which could not be said to be incidental to either residential or farming activities, had commenced at the appeal site before 15 July 1989, then his appeal should succeed.

On the evidence before him, the Inspector found that a material change use of the land to an airstrip with associated storage of aircraft had taken place well before 15 July 1989. There had been no clear-cut changes in planning circumstances between the end of 1983 (when there was a cessation of the previous aviation activities) and the middle of 1989, such as a conflicting grant of planning permission or an indication that the use had at some time been abandoned, and so the appeal was allowed on ground (d). There was evidence from the LPA of intensification of the use only after 1989, but this did not alter the Inspector’s view that the material change of use had taken place well before 1989 and had never been abandoned, as this evidence showed. The Inspector again referred to Panton and Farmer, which he observed, “makes it clear that once a use had ceased, its resumption would not amount to a material change of use unless that use had been abandoned. The result is that land can have a dormant use even though the unauthorised activities may not be functioning for significant periods of time.”

The Inspector therefore concluded that overall he could find no clear evidence of abandonment of the airfield use since previous flying operations had ceased in 1983-4. “As a consequence, I find, as a matter of fact and degree, that the airfield operation of 1983 is not materially different from the present usage of the site which has therefore continued for more than ten years. In these circumstances, the appeal on ground (d) against Appeal 1 succeeds.”

The judge at first instance in Thurrock held that the Panton case was distinguishable. The statute gives immunity if the breach complained of in the enforcement notice occurred more than 10 years ago. The rationale of the immunity is that throughout the relevant period of unlawful use the LPA, although having the opportunity to take enforcement action has failed to take any action and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. If at any time during the relevant period the LPA would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards “the rolling period of years” (**) which gives rise to the immunity. It was for the landowner to show that at any time during the relevant period enforcement action could have been taken. On this basis it was held that the inspector had misunderstood Panton and treated the two years of unlawful activity in the early 1980s as though this had resulted then and there in that activity being a lawful use. This constituted an error of law.

[** Note that I profoundly disagree with the concept of a “rolling period of years”, bearing in mind that section 171B(3) clearly refers to the period of 10 years “beginning with the date of the breach”. I will return to this point in a later part of this article.]

The Court of Appeal endorsed this approach, and made a further distinction between the situation in Panton, where the use had clearly become lawful after 10 years, but there had subsequently been some discontinuity in the use (not amounting to abandonment), and the situation in the instant case, where the discontinuity in the use had occurred during the claimed 10-year period.

It appeared from the decision letter that the Inspector approached his task by considering whether in 1981 there had been a material change of use to a commercial use and then considering whether the LPA had satisfied him that the commercial use had been abandoned. However, the concept of abandonment was only relevant where there was already a lawful use, in circumstances where a landowner then either does not use it actively at all or starts to use it in a different way. Can the landowner thereafter resume without a further planning permission what undoubtedly had been a lawful use on an earlier date? It was that sort of situation with which Panton was concerned (and the Court of Appeal decision in Thurrock did not disturb that aspect of the judgment in Panton).

So, in the Thurrock case, if the activities which took place on the land between 1981-1983 had continued unabated until 1992 and the landowner had then ceased to use the land for aircraft activities for 3 years and then sought once more to use it for aircraft activities, then this would have been the sort of situation with which Panton was concerned, namely whether or not an existing lawful use had been lost only by abandonment, or by some other supervening event in planning terms. The appellant’s problem in the Thurrock case was that there had been a cessation in the aviation activities well within the 10-year period.

The Inspector did not ask himself whether enforcement action could have been taken throughout the period 1981-1991 or any other clearly defined 10 year period. That was the question which should in the court’s judgment have been addressed by him.

The Court of Appeal specifically criticised the concept of a ‘dormant use’ as adumbrated in Panton. This would put local planning authorities in a difficult position in having to decide whether they should take enforcement action against a ‘sleeping’ use (or face the risk of that use becoming immune from enforcement by reason of time continuing to run under the 10-year rule), or whether they should alternatively regard the breach of planning control as having been remedied by the cessation of the use. It is on this basis that it can be inferred from the judgment of the Court of Appeal in Thurrock that a breach of planning control must be continuous throughout the 10-year period beginning with the date of the breach in order for immunity from enforcement, and therefore lawfulness of the use, to be achieved under section 171B(3).

It is clear, however, that the Court of Appeal decision in Thurrock did not disturb the other aspect of the Panton judgment, namely that if that 10-year period beginning with the date of the breach had expired, with continuity of the unlawful use throughout that period, so that immunity from enforcement (and therefore lawfulness of the use) had thereby been attained, then a later interruption in the use, falling short of abandonment or any other supervening event in planning terms which would have brought that use to an end [as per Hartley v MHLG [1970] 1 QB 413, at pp. 420-421 (Lord Denning MR); and Pioneer Aggregates (UK) Ltd v SSE [1985] AC 132, at pp. 143-144 (Lord Scarman)], does not prevent an LDC being applied for and granted, provided that the use can still be said to be subsisting at the date of the LDC application.

I will go on in the next part of this article to consider changes of use to use as a single dwelling, and the judgment in Swale BC v. FSS [2005] EWCA Civ 1568.

© MARTIN H GOODALL

Breaches of planning control – the need for continuity

[I generally try to avoid posting very long items in this blog, but just occasionally a topic crops up that requires a more lengthy treatment. The following article might justify publication in a legal journal, but I thought I would share it with readers of this blog in the first instance. As with a previous lengthy article I wrote on barn conversions, I propose to split this article into at least three separate blog posts.]

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It is an interesting coincidence that my colleagues Ben Garbett and Oliver Goodwin and I have all been puzzling over the same legal conundrum recently in connection with various cases in which each of us is currently involved. The issue that we have all been considering is the need to demonstrate continuity of a breach of planning control in the case of a change of use and/or breach of condition in order to establish that this breach has become immune from enforcement and therefore lawful.

The judicial authorities differ slightly depending on the nature of the breach (change of use to a single dwelling – the 4-year rule, change of use to some other use – the 10-year rule and breach of condition – the 10-year rule again). However, it is convenient to look at all these cases together in the chronological order in which the respective judgments were delivered.

The first of these cases, Nicholson v. SSE [1998] JPL 553, was heard in 1997. It related to the breach of an agricultural occupancy condition [“AOC”] in respect of which an LDC was being sought. The inspector, having reviewed the evidence concluded that the condition had not been breached continuously for a period of 10 years. The appellant also challenged the finding that there should be a subsisting breach at the time of the application.

The break in the continuity of the breach of condition arose from a period of several years when the property was unoccupied. The Inspector, applying an approach to this issue previously taken by the Secretary of State in other appeals, considered that there is no breach of the AOC during a period when an agricultural dwelling is not occupied at all. The house had remained unoccupied right up to the time of the LDC application. Its use as a dwelling had not been abandoned as such, and in fact it had been substantially extended (with planning permission) and had been subject to a lengthy process of refurbishment. However, following this continuing period of non-occupation, the inspector had concluded that any future occupation of the property by a person not complying with the AOC would be a fresh breach of the condition, with which previous periods of non-compliance could not be aggregated.

The Deputy Judge analysed the legal position in this way. By section 191(1), if a person wishes to ascertain whether “(c) any other matter constituting a failure to comply with any condition.....is lawful” he may make an application for that purpose. This paragraph is worded in the present tense, and is clearly directed towards the time when the application is made and to the lawfulness of the breach of condition at that time. By section 191(3), any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if the time for taking enforcement action in respect of the failure has expired (provided, of course, that it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force).

The Deputy Judge held that to answer the question whether enforcement action can be taken against a failure to comply with a condition, the decision maker should identify the failure to comply, look to see when, as a matter of fact and degree, that failure began and, finally, decide whether a period of ten years has since expired. He made the point that in this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use. Most significantly, he observed that if non-compliance ceases by discontinuance of the offending activity or otherwise, that breach is at an end. The condition will, however, in an appropriate case continue in force. If there is subsequently renewed non-compliance, this would be a fresh breach, and the period for enforcement against the breach under section 171B(3) will begin to run again. It is not permissible to add the period of one breach to that of a subsequent breach, if as a matter of fact and degree they are separate breaches.

In applying that test under section 191(3) the decision maker is concerned with the particular non-compliance, the subject of the application for a certificate. This is consistent with a requirement that the non-compliance should exist at the time of the application. The Deputy Judge was careful to make it clear that he was confining himself to those provisions of section 191 which deal specifically with failure to comply with a condition, and he concluded that an application for an LDC can only be made if non-compliance exists at the time of the application. The applicant will then be entitled to a certificate if, at that time, the failure the subject of the application satisfies the definition of lawfulness, i.e. that a period of 10 years has expired since that breach occurred [or one might say ‘began’, in the case of the breach of a condition requiring continuous compliance, such as an occupancy condition].

The Deputy Judge then went on to make a number of observations (which were in their nature obiter) on the relationship of this issue with the other provisions of section 191 in respect of uses and operations. These observations are nevertheless of relevance in view of their having been quoted in later judgments relating to those issues, which I will examine in the next part of this article.

© MARTIN H GOODALL

Bribing the NIMBYs

One of the things the government finds really frustrating is that they can’t MAKE local planning authorities grant planning permission. They can try persuasion, and they can ultimately impose government policy (as set out, for example, in the NPPF) through the appeals system; hence the housing appeals that are being allowed on greenfield sites where these developments are being resisted by local councils. But this still delays development that the government would like to see happening right now.

The problem is that elected councillors, fearful of losing their seats at the next council elections, are very susceptible to pressure from vociferous NIMBYs in their district, and it is this that has led quite a few councils to allocate less housing land in their emerging development plans than is objectively needed to meet housing demand in their areas, and to refuse planning permission for housing developments, wind farms, waste incinerators and other such schemes that tend to get the NIMBYs foaming at the mouth.

Now we have the prospect of fracking (extracting natural gas from gas-bearing shale by hydraulic pressure), which is strongly supported by the government, mainly I suspect because of the failure of successive governments since 1990 to come up with a viable strategy for energy, with the result that the lights are going to go out quite soon now unless the government can find a quick fix for the energy deficit. They have seized upon fracking as the answer, like a drowning man clasping at a piece of driftwood. Short of keeping the remaining coal-fired power stations open, in breach of international commitments, there doesn’t seem to be much alternative in the short term, although the nuclear option is clearly the best solution in the longer term. (Forget wind power – it is never going to deliver.)

But here we come back to the NIMBY problem, and the resulting reluctance of local planning authorities to grant permission even for purely exploratory drilling.

Three years ago, when the government decided that it wanted to promote more development as a means, they hoped, of kick-starting economic growth, they came up with the idea of the New Homes Bonus - effectively a bribe to local planning authorities to accept housing development in their areas which they might otherwise have been inclined to resist. There seems to be very little evidence that this has influenced planning decisions at the local level, not least because the NIMBYs can’t see any benefit for themselves in a bonus being paid to their local councils, so they have naturally kept up the relentless pressure on their councillors to resist further development in their area.

It may well have been the slowly dawning realisation among ministers that the New Homes Bonus has been largely ineffective in influencing local decision making that led to the Chancellor announcing in his ‘Autumn’ Statement (in December) that the bribes to accept new development offered to councils (in the form of the New Homes Bonus and the neighbourhood funding element of the Community Infrastructure Levy) might be extended to individual households in areas where new housing developments are to be built. Now we have a similar proposal in relation to fracking, whereby local residents might be paid some form of financial compensation for the disturbance and inconvenience caused by fracking.

No indication has been given as to how either of these ‘compensation schemes’ might work, and I strongly suspect that the government really hasn’t given any serious thought to the practicalities (or even to the practicability) of these schemes yet. It smacks of making policy on the hoof - a frequent habit of the present government, who seem to make a practice of announcing policy initiatives only to withdraw them when it becomes clear, usually quite quickly, that they are seriously unpopular or that they simply won’t work. (Maybe this government should be given the Turner Prize for developing the U-turn as an art-form.)

It is difficult to see how any compensation scheme might work in practice, and it seems improbable, bearing in mind the continuing resistance to further housing development and the virulence of the increasing opposition to fracking, that any scheme designed to buy off the NIMBYs with direct bribes (er, I mean ‘compensation’) will have the effect the government hopes to achieve. There must also be doubts over the legality of such a procedure, especially if (as appears to have been hinted) the compensation for fracking is to be paid by the extraction companies direct to neighbouring owners. How could this be reconciled with the fierce and all-embracing provisions of the Bribery Act 2010?

Ultimately, the government will get its way by allowing appeals against the refusal of planning permission at the local level, but at the cost of a delay of up to a year in bringing shale gas on-line, so as to address the increasingly urgent energy deficit.

I think it might be a good idea to ensure that you have a good stock of candles at home.

© MARTIN H GOODALL