Thursday, 23 January 2014

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).



Anonymous said...

Firstly I want to thank you for your wonderful blog. I just discovered it recently and I find your analyses to be spot on.
Regarding this discussion about the need for continuity for LDC's the focus has been on uses which were not residential to begin with. I've been wondering how this plays out in a case where one subdivides a single dwellighouse into a few flats.
If for example during the four years there are periods where some of the flats are vacant, would one need to show continuous occupancy of all the flats for a period of four years? Would any period of vacancy be acceptable to still be called continuous, after all we are starting with an established residential use of the property as a whole?

Anonymous said...

Not sure if you've covered this yet but are you planning to discuss the immunity for operational development which is also in breach of a condition eg an extension which would ordinarily be permitted development but for a condition removing permitted development rights?

Martin H Goodall LARTPI said...

I am sorry that I am a bit behind in moderating and responding to recent comments. To answer first the query about the subdivision of a house into a number of flats posted on 23/1/14, the Court of Appeal decision in Van Dyke made it clear that each flat so created was to be treated as a separate private dwelling, and so it is the 4-year rule that applies in this situation. However, it follows that the 4-year rule must be satisfied separately in respect of each flat, and so an individual flat will only become immune from enforcement if it has been continuously occupied throughout a period of 4 years.

This would appear to produce a possibly anomalous situation if some flats in the conversion have become immune from enforcement while others have not. There is also a lingering doubt regarding the building as a whole and its common parts. Notwithstanding Van Dyke, it has been suggested that the conversion of the building as a whole might still be subject to the 10-year rule. If this is correct (and I have not formed any definite view on the point), effective enforcement action would appear to be almost impossible where some at least of the flats (and in some cases all of them) have individually achieved immunity under the rule in Van Dyke.

The practical answer would appear to be that no reasonable LPA properly informed of the facts could conclude that it would be ‘expedient’ (in the words of section 172) to serve an enforcement notice in such circumstances. If an EN were to be served, it certainly could not require the vacation of any flat which had already become immune from enforcement under the 4-year rule (by reference to Van Dyke), and so the house as a whole could not be returned to use as a single house.

There is just one possibility that occurs to me, although it would hardly be consistent with Van Dyke. This would be an argument relying on cases such as Murfitt -v- SSE ([1980] JPL 598) and Perkins -v- SSE ([1981] JPL 755), whereby development to which the 4-year rule ostensibly applied was found still to be vulnerable to enforcement, because it formed an integral part of a larger development against which enforcement action could still be taken under the 10-year rule. However, it would be a brave LPA that tried to enforce against a house conversion on this basis. The developer would no doubt rely on Van Dyke, and if the LPA succeed in persuading an Inspector to uphold the EN, a trip to the High Court would almost inevitably follow.

Martin H Goodall LARTPI said...

The second unanswered query is one that was posted on 24/1/14 regarding a breach of planning control comprising operational development which is also a breach of condition. For reasons that I will explain in a moment, the scenario actually postulated would not amount to a breach of condition, and so the point does not arise in that precise scenario.

In practice, I think it would be impossible to find a condition attached to a planning permission which purports to prohibit further operational development. (As I have indicated, a condition removing PD rights is not such a condition.) Such a condition would undoubtedly be unlawful by reason of breaching at least one and perhaps two or three of the six legal tests, as well as being wholly at variance with ministerial policy as set out in Circular 11/95.

What a condition removing PD rights does, on the other hand, is simply to make it necessary to apply for planning permission for minor development which would have been PD were it not for that condition. Carrying out development that is no longer PD by virtue of that condition does not constitute a breach of condition; it is simply operational development without planning permission, and is subject to the 4-year rule under section 171B(1).

Evan Owen - Snowdonia said...

I noticed an application for a COL was granted in 2013 for an outline application dated 1982 when the landowner had simply put in a water supply pipe and the LPA confirmed this in writing yet didn't enforse.

Could a 1973 outline application be considered for a COL if work on the visibility splay had been carried out within the 3 year period?

Martin H Goodall LARTPI said...

In answer to Evan Owen, as always “it depends”. There is a potential difficulty if one can only find the outline permission, and there is no proof that reserved matters were approved within the time limit. However, assuming you can get the LPA to accept that all reserved matters were approved, then a vision splay might possibly qualify as a material operation under section 56, but I would be cautious about this – the facts need to be carefully analysed.