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User for 4 or 10 years

Break in use

Fairstate Ltd v (1) First Secretary of State (2) Westminster City Council
[2005] EWCA Civ 283

In this case the premises had previously been used as temporary sleeping accommodation for ten years, within the meaning of s.25 of the Greater London (General Powers) Act 1973, which had therefore become a lawful use under s.191(2) of the 1990 Act.

However, there was then a 5 month break in the continuity of that type of use and the premises had been used for longer-term permanent accommodation. This use ceased and the short-term lettings resumed. The Court of Appeal held that this resulted in a material change of use under s.25 of the 1973 Act. As it was a change in use for which planning permission had not been granted, it amounted to a breach of planning controls under the 1990 Act. Accordingly the Council had been entitled to issue the enforcement notice.

The case raises interesting issues concerning the interplay of section 25 of the 1973 Act with the immunity from enforcement provisions of the Town and Country Planning Act 1990. The break between resumption of the use for short term sleeping accommodation was only 5 months. As the Court of Appeal accepted:
    "but for s. 25, Mr Lewis would be correct to submit that the five month interruption of over fourteen years of use for temporary sleeping accommodation would ordinarily be insufficient to destroy that hardy beast, as Mr Lewis describes the accrued right. As Sullivan J. puts it in para. 19 of his judgment:-
      'There would therefore, in those circumstances, be no development within the previous 10 years on which any enforcement notice could bite.'

    If, therefore, s. 25 does have that destructive effect, it will operate as an exception to the general rule leading to Fairstates complaint that it will be unfair to permit enforcement in the face of over fourteen years lethargy."
The Court of Appeal found that section 25 did in fact have that effect.

The Court set out the main issue:
    "The interesting question which calls for decision in this appeal is 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 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."
And held:
    "The critical question seems to me to be whether the interruption of that sequence of short-term occupations, represented by Miss Kapoors occupation of the flat, brings s. 25 into play. Her occupation effected no material change of use and, as I have explained, it was to that extent lawful use of the accommodation. It endured for longer than ninety days and so it was not use as temporary sleeping accommodation. But it was, as the Inspector found, a significant break in the continuity of the pattern of use for temporary sleeping accommodation. It was the trigger which allowed the renewed operation of s. 25. Accordingly, in accordance with the clear words of the section, re-commencement of use for temporary sleeping accommodation was deemed to be a material change of use."

Use for four years

Swale Borough Council v (1) First Secretary of State (2) Lee
[2005] EWHC 290 (Admin)

The main question in this appeal was whether the Inspector's finding that the barn had been used as a single dwelling house for a continuous period of four years could be supported.

Reference was made on behalf of the Council to the case of Thurrock Borough Council v Secretary of State for the Environment Transport and the Regions & Terry Holding [2002] EWCA Civ 226. The court distinguished this case in terms of when a use can be said to have ceased in respect of a use such as an airfield and that of a dwelling house:
    "It must be borne in mind that the Thurrock case concerned the use of land as an airfield. It seems to me that there is an essential difference between such use and the use of a building as a dwelling house or, to avoid confusion, the use of a building as a dwelling. In the former case the activity is well defined and consists of the use of land to provide space for aircraft to land and take off and to be stored between flights. The activity can be shown to cease when aircraft movements cease and there are no aeroplanes on the land and such cessation cannot be accounted for for reasons which are not consistent with continuing use such as weather conditions or a Government ban on flying. By contrast, it seems to me, that use of a building as a dwelling does not cease if the landowner or his invitees do not actually sleep there for even quite long periods of time. Thus an absence from the building while the owner takes a substantial holiday does not mean that he has ceased to use the building as his dwelling."

4 Year and 10 year rule

First Secretary Of State v (1) Arun District Council (2) Brown
[2006] EWCA Civ 1172

Question

Does the 10 year rule or 4 year rule on immunity from planning control apply where there is a change of use of any building to use as a single dwelling house brought about through the breach of a condition?

Answer

The Court of Appeal overturned the decision of the court below and held that the breach of planning control fell within 171B(2) of the Town and Country Planning Act 1990, and the local authority had to take enforcement action within 4 years and not 10 years.

Arguments

The question before the court was a matter of construction which the judge set out with the opposing arguments as follows:
    "whether a breach of condition resulting in a change of use of a building to use as single dwelling house is governed by the four-year time bar in section 171B(2) or the ten year time-bar in section 171B(3). The First Secretary of State, whose appeal this is, argues for the four-year bar on the basis that the scheme of section 171B is to provide a ten year time-bar for breaches of planning control in the form of material change of use, save only for the single exception of change, whether material or not, of use to a single dwelling house. Arun District Council ("Arun"), whose decision as local planning authority seeking to enforce a planning condition against such change outside the four year period is under challenge, argues for the ten year period in section 171B(3), on the basis that section 171B(1) and (2) are concerned only with breaches of planning control in the form of development without permission (section 171A(1)(a)), and the only place for breach of condition (section 171A(1)(b)) is as an "other breach of planning control" in section 171B(3)."
In seeking to resolve the matter the Court noted that:
    "The starting point in the 1990 Act for consideration of this issue is section 55(1), which identifies two forms of development subject to control by the Act, operational and change of use. It provides so far as material:
      " 'in this Act, except where the context otherwise requires, 'development' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."
    As to 'material change of use', section 55(3)(a) provides that:
      "the use as two or more separate dwelling-houses of any building previously used as a single dwelling-house involves a material change in the use of the building and of each part of it which is so used.'
    Section 171A(1) of the 1990 Act, under the side heading 'Expressions used in connection with enforcement', identifies two categories of breach of 'planning control', the first of which, development without required permission, embraces both forms of controllable development identified in section 55(1), and the second of which may or may not result in such development, failure to comply with a condition to or limitation on permitted development:
      'For the purposes of this Act -
      (a) carrying out development without the required planning permission; or
      (b) failing to comply with a condition or limitation subject to which planning permission has been granted;
      constitutes a breach of planning control'
    Section 171B provides two different time-bars for enforcement action for 'breach of planning control' according to different forms of breach whether in the form of impermissible development or for failure to comply with a condition to or limitation on permitted development. In summary, it provides: a time-bar of four years from substantial completion of works for breach by way of operational development; four years from breach for one particular category only of change of use, namely 'of any building to use as a single dwelling house'; and ten years from breach for 'any other breach of planning control'. The section reads as follows:
      '(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
      (2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of four years beginning with the date of the breach.
      (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.
      (4) "
The decision

The Court held:
    "In my view, the breach of planning control by Mrs Brown falls squarely within the words of section 171B(2), and is, therefore, enforceable for a period of four years only after the breach. Prior to 1996 the extension was used for a purpose ancillary to the house. From 1996 its use changed to independent use as student accommodation. By virtue of s. 55(3)(a) of the 1990 Act (see paragraph 2 above) that change constituted a material change of use, and was therefore development without planning permission within the meaning of s.171A(1)(a) and/or it was a breach of condition of the permission within the meaning of s. 171A(1)(b). Either way, it was clearly a "breach of planning control" consisting in "the change of the use" of the extension from a residential use which was ancillary to and part of the main dwelling, to use as a separate single dwelling house within the meaning of s.171B(2)."

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