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