Wednesday, 27 November 2019

Another continuity case under section 171B(2)

There has been some comment on last month’s judgment in Islington LBC v SSHCLG [2019] EWHC 2691 (Admin). However, the judgment does no more than to confirm existing and well understood law on the need for the continuity of a residential use throughout a four-year period if an unauthorised change of use to residential use is to become immune from enforcement under section 171B(2). The position regarding the need for continuous use was very clearly established in the judgments in Swale and in Thurrock. Void periods, unless they are of very short duration, will re-set the clock to zero, and this includes voids associated with redecoration or refurbishment for the purpose of re-letting. The resumption of residential use after such a void period will be seen as a fresh breach of planning control, which cannot benefit from any earlier period of residential use in calculating the 4-year period for the purposes of section 171B(2).

Where the Inspector went wrong in this case was in allowing himself to be persuaded that the earlier judgment in Gravesham gave rise to the possibility that residential occupation need not be continuous. I have never derived such an implication from that judgment, and I find it difficult to understand how one could claim support from that case for such a proposition. All that Gravesham did was to establish a pre-qualifying requirement that, before a change of use to residential use can commence, the premises in question 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 is admittedly a potential anomaly that arises from the rule in Gravesham, as applied by Impey, (both cases that had been called in aid by the developer in the Islington case). This is the proposition, which was clearly accepted by the Supreme Court in Welwyn Hatfield ("the Beesley case"), based on Gravehsam and Impey, that a change of use to residential use does not depend on actual residential occupation; the change of use takes place at the point at which the construction or adaptation of the premises is completed, so that the premises are then ready for imminent residential occupation.

One is therefore faced with the position (which is not perhaps entirely logical) that a breach of planning control could well take place even if actual residential occupation has not commenced, but that any time between this unauthorised change of use taking place and actual residential occupation commencing cannot be counted towards the 4-year period for the purpose of calculating the time when this breach of planning control (i.e. the change of use) will become immune from enforcement under section 171B(2).

Although Gravesham and Impey, and also Welwyn Hatfield, were called in aid by both the developer and by the Secretary of State in the Islington case in attempting to defend the Inspector’s decision, the potential anomaly I have mentioned above did not arise in this case, which was a straightforward example of a residential use being subsequently interrupted by a void period during which the flat in question was thoroughly refurbished (in fact it was described as having been ‘gutted’, so as to render it completely uninhabitable while those works were in progress). The judgment in Panton and Farmer has no application in this situation; it applies only after immunity has first been achieved. There are numerous examples of void periods having been held to ‘stop the clock’ for the purposes of the 4-year period, so that the clock is then re-set to zero if a residential use is subsequently resumed. Mrs Justice Lang’s judgment in favour of the LPA, quashing the Inspector’s decision, in which he had allowed the developer’s appeal against the LPA’s enforcement notice, seems to me to have been inevitable in these circumstances, and should occasion no surprise whatsoever.

Where the courts might perhaps find themselves in some difficulty in the future, would be a case where works were completed so as to bring about a change of use, as established in Welwyn Hatfield, followed by a period of (say) a couple of months, or perhaps even longer, before actual residential occupation of the premises commences (during which the property was on the market but had not been sold or let), followed by a period of continuous and uninterrupted residential occupation falling short of four years, but which when aggregated with the period when the property was fully ready for occupation but had not yet been occupied does add up to four years. The court would then have the interesting task of reconciling Thurrock and Swale on the one hand with Welwyn Hatfield on the other.



  1. Martin, I'm not so sure Welwyn Hatfield creates the difficulty you suggest in your final paragraph.

    It seems to me that WH was a case concerned with the erection of a new building (operational development), the purpose it had been erected for (a barn or a house), and whether a material change of use to a dwelling can be claimed to have begun 4 years prior when there was in fact no use that preceded the original (unauthorised) use as a dwelling house. I can't see much in WH s about continuity of use from the point of a first c/use from a previous use. I think all WH confirms is that if you build a house (without PP) the enforcement clock starts ticking when the building is effectively complete, not when the building is first occupied. I think for cases involving c/use of an existing building (as opposed to erection of a new building) we can still start the clock based on occupation.

    But I could be wrong...

    1. I take Richard W’s point; Welwyn Hatfield was indeed a case involving new build, but the observation made by Lord Mance at paragraph 29 in that judgment is of wider application, where he did refer to the question of a change of use, confirming the correctness of the approach taken in Impey. Even if his observation on this point might (perhaps) be said to be obiter, I consider that it is nevertheless of considerable persuasive authority, and Impey would apply in any event.