Lawful use – the need for continuity clarified

In my book The Essential Guide to the Use of Land and Buildings under the Planning Acts I pointed out that when an application for a Lawful Development Certificate is made in respect of an existing use, that use (in addition to having been continuous and uninterrupted throughout the 4-year or 10-year period, whichever is applicable) must also be in existence when the application is made. What I wrote (in paragraph 19.5.1 of Chapter 19) was:

“There is, however, a requirement that the use must actually subsist on the date when an application for a Lawful Development Certificate is made, although (having regard to Panton and Farmer) this does not imply that the use must have been continuous since the date on which it became lawful, following 10 years’ continuous use in breach of planning control.”

This statement is correct, but it occurs to me that I should perhaps have explained this proposition in a little more detail. The authority that I had in mind was a passage in the judgment of Robin Purchas QC in Nicholson v SSE [1998] J.P.L. 553, at page 561, where he pointed out that the need for continuity of the breach of a planning condition seemed to him to be consistent with the linked provisions in section 191 for LDCs 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 use of buildings or other land is lawful”. It is plain accordingly that in respect of uses the use must exist at the time of the application. The question is itself also directed to that time. Under section 191(1)(b), operations are, unsurprisingly, described with reference to the past in that generally they will already have taken place. However, the question is asked, as with “existing uses” and matters of non-compliance, in the present as at the time of the application. In the context of the section as a whole, I find no difficulty in reading that as a requirement that the operation should continue to be in existence in some physical sense, be it as a building or other structure or as may be. That seems to me to fit with the definition of lawfulness in section 191(2). As with section 191(3), lawfulness for uses and operations requires under (b) consideration whether they “do not constitute a contravention” of an enforcement notice then in force. As I have said, that seems to me to presuppose that there is something in existence at the time of the application which would be capable of contravention if there was in fact a relevant enforcement notice then in force. Equally, under (a), the requirement that “no enforcement action may then be taken” implies that there is something in existence against which enforcement action might be taken if it were not for the absence of requirement for permission or the grant of permission or the expiry of time for enforcement action. To my mind, the natural reading of section 191 in respect of uses and operations is that the section requires that the uses and operations should exist at the time of the application in the sense that I have indicated. That would be consistent with the approach that I have taken to non-compliance. Any other interpretation would seem to me somewhat to strain the language used and should only be adopted if the natural construction plainly conflicts with the object of the Act or otherwise leads to an absurd or illogical result.”

This passage was obiter but Nicholson was nevertheless cited with approval in the Court of Appeal in Swale BC v FSS [2005] EWCA Civ 1568, at para. 6 (Keene LJ), and was further discussed in Ellis v SSCLG [2009] EWHC 634 (Admin).

In paragraph 19.5.1 of The Use of Land….. I also pointed out that, having regard to Panton and Farmer v SSETR [1999] J.P.L. 461, the need for the actual existence of the use at the time of the LDC application does not imply that the use must have been continuous since the date on which it became lawful, following 4 years’ or 10 years’ continuous use in breach of planning control (whichever is applicable). The relevant passage in Panton is to be found on page 468:

“Mr Albutt's skeleton argument appeared to suggest that an "existing" use for the purposes of section 191(1) described one which was active at the time of the application. During the hearing I suggested the term "dormant use", as representing a use which had arisen by way of a material change of use, but was now inactive, possibly for a long period of time. Such decline, even cessation, of physical activity could, of course, occur in countless different circumstances. The dormant use would still exist in planning terms, in the sense that the use right had not been lost by operation of law by one of the three events referred to above.

It is clear that a dormant use, in this sense, can be an "existing" use for the purposes of section 191(1), and this position was in terms accepted by the first respondent. This becomes clear when one appreciates that the LDC provisions have to be construed in the context of the enforcement provisions as a whole. Section 191 (1) enables the grant of a certificate where a use is lawful, one example of lawfulness being immunity from enforcement through the passage of time. By section 171B(3) the relevant period of time (in relation to a use other than as a single dwelling-house) is the passage of10 years from the date of the breach. The subsection is silent on any requirement for continuation of the use. Indeed; this approach is consistent with the fundamental principles of statutory development control in relation to material changes of use. The provisions are concerned with the carrying out of development, that is to say not use, but material change of use.

Further, this approach to the term "existing", shared by the first respondent in this case, is consistent with the approach taken by the Secretary of State in relation to the former provisions. Under the previous provisions relating to established use certificates, the use had to have "continued since the end of 1963", and be "subsisting at the time of the application". In a number of appeal decisions, the Secretary of State accepted that these provisions could apply to an inactive, or dormant, use, provided that it had not been abandoned.

Finally, there is nothing inconsistent, in my view, between this approach and the judgment of Mr Robin Purchas Q.C. (sitting as a deputy High Court judge) in Nicholson v. SSE (1998) 76 P. & C.R. 191. That decision concerned the time limits for enforcement in relation to breaches of condition. Mr Purchas held that an LDC could only be granted where the non-compliance with the planning condition was current at the date of the application. As Mr Purchas pointed out, if there were a period, following non-compliance, of compliance with the condition, the breach would be at an end, and a later breach would constitute a fresh breach, in relation to which time would begin to run again under section 171B(3). As he pointed out: "In this context a failure to comply with a condition is not to be confused with the continuation or abandonment of a planning use". The learned deputy judge continued in the following terms at page 199:

"That construction seems to me consistent with the linked provisions in section 191 for lawful development certificates in respect of uses and operations ... It is plain, accordingly, ……. [the passage I have quoted above] ………. would be consistent with the approach that I have taken to non-compliance."

There is nothing inconsistent, in my view, between those remarks and the approach that I take in the present case, an approach accepted by the first respondent. The burden of Mr Purchas' s reasoning is that there must be, at the date of the application, a use or operation at the land upon which an enforcement notice could "bite". An enforcement notice is no less properly served in relation to a dormant use than in relation to one which is being carried on in an active or physical sense.”

The only other point that needs to be borne in mind when considering the judgment in Panton is that the Court of Appeal made it clear both in SSETR v Thurrock BC [2002] EWCA Civ 226 and in Swale BC v FSS [2005] EWCA Civ 1568 that the remarks in Panton regarding a use being dormant do not apply to the period before immunity from enforcement is achieved, i.e. during the 4-year or 10-year period, throughout the whole of which the use must be both active and continuous. The rule in Panton nevertheless applies once immunity has been achieved under the 4-year or 10-year rule.

Thus there is no contradiction between what I wrote in my book on The Use of Land….. and what Richard Harwood wrote in the Third Edition of Planning Enforcement, viz: “If the active use ceased after it became lawful, a CLEUD application should only be refused if the use was then abandoned or otherwise terminated”. In paragraph 19.5.1 of my book I did not intend to imply that the use has to be active at the time when an application for an LDC is made; merely that it still has to exist (in the sense of not having permanently ceased or been abandoned). I fully accept that a use, once it has become lawful may then become dormant but still remain extant. The judgment in Panton and Farmer is clear authority for this and, in these circumstances, an application for an LDC in respect of an existing use must be granted accordingly.

© MARTIN H GOODALL