Tuesday, 28 January 2014

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

10 comments:

Anonymous said...

Martin, firstly, thank you for your ever-excellent blogs.

Whilst I am not legally trained I find the planning-law subject fascinating (I must get out more!).

I have a question regarding whether a breach of an occupancy condition relating to agriculture or holiday-use of a dwelling is subject to either the 4-year or 10-year immunity rule if the dwelling is occupied as a normal open-market dwelling continuously for more than 4/10 years (as applicable.

I seem to remember a case a few years ago (involving a Council in the Salisbury area – I think) where a new dwelling had been the subject of a holiday-use only occupancy condition. The owner subsequently occupied the dwelling as her main residence continuously for more than 4-years but less than 10-years (say 6-years). The LPA instigated enforcement action and the case ended in Court. In determination the Judge opined that normally the 10-year rule would apply to a breach of a condition, however, if a non-dwelling building had been occupied as a dwelling continuously for 4-years then immunity from enforcement would occur and this represented a greater breach in planning terms than was the situation in the case before the Court. Given this 4-year rule in relation to the change-of-use to a dwelling the Judge determined that the breach of the restricted occupancy condition in relation to the dwelling should also be subject to the 4-year rule, and found in favour of the occupier.

Your comments and opinion regarding this 4-year or 10-year scenario would be very welcome.

Garry.

p.s I would have no problems with adverts being incorporated alongside you blog.

Martin H Goodall LARTPI said...

My apologies for the delay in moderating the Anonymous comment submitted on 29/01/14. Without knowing the full facts of the case mentioned, it is difficult to comment in any detail, other than to say that if the property was already a dwelling, then it would be the 10-year rule that applied to the breach of condition, under section 171B(3). Only if the property did not qualify as a dwelling to start with would a breach of an occupancy condition be subject to the 4-year rule (as per the decision in Arun, which is the case my correspondent presumably had in mind) if it resulted in the creation of a separate dwelling where there had been none before.

The Arun judgment has been mentioned more than once in this blog in this connection.

Anonymous said...

Thanks for this interesting discussion. I am currently dealing with an enforcement issue (from an LPA perspective) where a C3 dwelling has changed to a C2 small care home for children under the principle that the change was not material, following the North Devon case. The care home originally housed 3 children, but recently (and some two years after the original occupation) a fourth child was introduced. My view is that since the C2 use is not unlawful then the increase in the occupation would be a change within a use class and so not amount to a breach. Our lawyers' view is that the C3 use remains the lawful use of the property and that the C2 use continues to be enforceable if, at any time within ten years from the original change, we are of the view that it amounts to a materially diferent use from the pre-existing C3 use. I would be very interested to know your thoughts on this.

Martin H Goodall LARTPI said...

It is well settled law that no material change of use takes place if the use of a property continues to fall fairly and squarely within one and the same Use Class (see section 55(2)(f)). Intensification of such a use cannot amount to a material change of use, although there are situations in which intensification of a use may possibly take a use outside the scope of its original use class (see, for example, Wallington v. SSW).

The first question in this case, therefore, is whether a material change of use has taken place (and if so, when) so as to take the use outside the scope of Class C3. If the property can no longer be said to be within Class C3 then I agree that the use would in those circumstances appear to fall into Class C2.

The 10-year period for enforcement must necessarily run from the date on which a material change of use actually took place, so we are back to having to decide whether and, if so, when such a change of use has actually occurred. This is a matter of fact and degree, and must necessarily be a matter for objective planning judgement in the light of all the facts.

The only use of the property that would be lawful is use as a single private dwellinghouse (within Class C3). Once that use has changed to a use that no longer falls within that use class, there has been a material change of use and the clock will start ticking for the purpose of the 10-year rule, assuming that the new use remains continuous.

Anonymous said...

Martin, thank you very much for your superb blogs!
perhaps you could shed some light on the situation i find myself in regarding the LPAs strange decision on my ELD application?

In 2005 I moved a shell of a twin unit mobile home onto my land and refitted it for residential use plus large extensions etc and moved in.
In 2011 I applied for a certificate of lawfulness for the construction of a dwellinghouse and after 1 1/2 years waiting the LPA granted a certificate for the "building" with no curtilage but not for a dwellinghouse? this was followed by a 28 day notice to leave the building and remove cooker, sofas etc.I appealed this and eventually the LPA withdrew it's notice.
Since then when I have asked the LPA how do we move forward with my application they just say they are waiting for similar cases to be tested(the specific case they mentioned to me was tested months ago at appeal and the LPA lost)...it seems they are trying to find a way of using the "change of use"(wellwyn? case) wording to say it is not a dwelling even though they invited me to apply for a dwellinghouse in 2011 and they call it a dwelling in their correspondence?
Add to this the fact that they knew exactly where I was in 2005 yet did not pursue me leaves me baffled as to how and why they are now being so non transparent with me on how to resolve this and why it is taking so long.
So, after nearly 3 years since being invited to submit an application I'm left in the horrible situation of living in a "building" with no "use" and just waiting for the LPA to come up with a new way to try to remove me from my home.
How can this be right!??

Martin H Goodall LARTPI said...

The situation described by my anonymous correspondent on 07/03/14 is clearly complex, and would require careful investigation and detailed consideration. For that reason, it does not admit of an answer in this forum. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Ian said...

Dear Martin

On searching the web I've come across your blog which seems very informative. I've just a quick query, if you don't mind.

I'm interested in the case of a dwelling in Wales, which has been built without planning permission, and completed and occupied continuously for well in excess of 4 years. I'm satisfied, having also considered the issue of concealment etc, that the dwelling its self is now lawful.

My question is does the 4 year rule also apply to the garden area which was created at the same time as the house was developed, or would this be 10 years?

Many thanks.

Martin H Goodall LARTPI said...

The view I have always taken is that the planning unit in respect of which a change of use takes place is the whole of the land used and occupied for the relevant purpose. Where garden land is included with the converted dwelling at the time when the conversion takes place, then I would agree that the 4-year rule applies to the whole of the identified planning unit, including the garden land. It is only where land not previously in residential use is subsequently taken into the residential planning unit that the 10-year rule would apply to the change of use of that extra land.

CEC said...

I've found the blog very useful reading but have not been able to answer all my questions. Might I ask you to comment on this please?

I have an interesting and hopefully straightforward query regarding an application for a CLEUD for a change of use from agricultural land to an activity which has been carried out under the GPDO temporary use of land / 28 day rule and which is claimed to have been going on in excess of 10 years The questions relate to the issues of start date, presentation of evidence and continuity and are relevant to its likely chance of success.

The data supplied to support the application shows that although the first instance of the activity was 12 years ago, it was a single event in the year. Then there was no further activity until 2005 when there was activity which did not breach 28 days that calendar year. From 2006 onwards the activity generally breached the 28 day rule. However there were 2 exceptions to this; one whole 12 month period of no activity at all (which spanned 2 calendar years) when the 28 days was not breached in one of those years and a further 9 month period of no activity at all which resulted in it being close to the 28 days in that year. However when the data is presented in a mid-year to mid-year summary, it conveniently shows that the 28 day rule has been breached each year since mid 2005, due to the erratic nature of the activity

My questions are: when does the 10 year period relevant to the CLEUD start? .. In 2003, mid 2005, at the start of 2006 being the first calendar year the 28 day rule was breached or halfway through 2006 after 28 days of activity that year? Does the application need to demonstrate breach of the 28 day rule every year for 10 years to succeed, and should it be calendar years or can it be any other 12 month period? In other words, would the 12 month and 9 month periods of complete inactivity, at least one of which meant that the 28 day rule that calendar year was not broken, mean that the requirement for continuity is not met and thus the application should be refused?

Martin H Goodall LARTPI said...

The answer to CEC’s question of 23 October is that every occasion on which a temporary use takes place is regarded in law as a fresh change of use. Thus I see no way in which successive annual breaches of the 28-day limit could ever be claimed to become immune from enforcement under the 10-year rule. Only if the ‘temporary’ use, once started, was not then discontinued would time continue to run for the purposes of the 10-year rule. The key point is whether or not the use of the land reverts to its normal use after each temporary use (which is what it should do where temporary use takes place as permitted development under Part 4 of the Second Schedule to the GPDO). This topic is dealt with in my new book on Permitted Changes of Use. Needless to say, I can strongly recommend readers who want answers to questions of this sort to buy a copy – it’ll be worth every penny!