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