ENFORCEMENT, TIME LIMITS

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ENFORCEMENT, TIME LIMITS CHANGES OF USE

• JAMES FINDLAY
• 2-3 GRAYS INN SQUARE

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SECTION 171(B)

• (2) Where there has been a breach of planning
  control consisting in the change of use of any
  building to use as a single dwellinghouse, no
  enforcement action may be taken after the end of
  the period 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.

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THREE ISSUES

• Section 171B(2)
• Dwellinghouse/use as a dwellinghouse
• Change of use/breach of condition
• Section 171B(2) and (3)
• 3. Proper approach to period of non-compliance

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Purposive approach

• The underlying purpose of s.171B(3) is to confer
  immunity in circumstances where, throughout a
  relevant period of unlawful use the local
  planning authority, although having the
  opportunity to take enforcement action, has
  failed to do so consequently it would be unfair
  and/or could be regarded as unnecessary to permit
  enforcement.

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(1) What is a dwellinghouse?

• The distinctive characteristic of a dwellinghouse
  is its ability to afford to those who used it the
  facilities required for day-to-day private
  domestic existence. It does not lose that
  characteristic if it is occupied for only part of
  the year, or at infrequent intervals, or by a
  series of different persons, or if it is under
  commercial management for holiday or other
  temporary lettings Moore v SOSE

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Dwellinghouse

• A building remains a dwellinghouse whether it is
  used all the time by one family or is used for
  holiday lets.
• It is the ability to use it to dwell in that is
  important.
• The extent/size of accommodation can be very
  limited indeed.

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the change of use of any building to use as a
single dwellinghouse

• The section provides that any building  can
  qualify if it is used  for the requisite period
  as a dwellinghouse.
• The fact that the building may lack the normally
  expected comforts (e.g. running water and
  sanitation) of a dwellinghouse should be
  irrelevant. It is how the building is used that
  is the only question.
• Van bodies in barns hidden behind hay bales.

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GRENDON v FSS 2006 EWHC 1711 (Admin), 2007
JPL 275

• The building measured about 4.25m x 5.8m and had
  a monopitch roof of corrugated sheets.  It had a
  small window under the eaves at the north end and
  the south end was until recently largely open
  when the wooden shutters were folded back. 
  Within the previous year a window had been fitted
  behind the shutters.  There was a sleeping
  platform at one end of the room and a sitting
  area with a settee at the other.  Heating was
  provided by a wood burning stove and there was a
  butane gas hob for cooking.  The walls were
  largely occupied with shelving containing books,
  music CDs and other personal possessions. 
  Electricity had been recently connected, but for
  most of the period of occupation light had been
  provided by candles and paraffin lamps.  There
  was no running water, bathroom or toilet at the
  property.

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Grendon v FSS

• The Inspector was simply unable to find as a
  matter of fact that the premises constituted a
  "dwellinghouse" and they could not be turned into
  one by the mere fact of the Claimant living there
  and so unnecessary to consider period of
  occupation.
• The Court upheld the approach.
• The test is simply whether any building is being
  used as a single dwellinghouse. Yet the judge
  adopted a slightly different approach, i.e. to
  first consider whether the building is a
  dwellinghouse and then, if it is, whether it has
  been used as a single dwellinghouse for the
  requisite period. It failed the first test.

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Is it correct?

• There is something unsettling about this
  decision. (Commentary in JPL)
• Strongly arguable that is inconsistent with Swale
  (e.g. paras 25 and 35) which was not cited.
• In that case, during the period in which it was
  alleged that immunity was acquired the Inspector
  found that the building was not a dwellinghouse.
• At most there may be a difference in the
  evidential burden between a building which is a
  dwellinghouse and one which is not (see per
  Sedley LJ in Swale)

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(2) CHANGE OF USE/BREACH OF CONDITION

• Eg Condition prevents sub-division of building
  into separate dwellings/change of use of a
  non-residential building
• Is it 4 or 10 years
• Court of Appeal in FSS v. Arun DC 2006 EWCA Civ
  1172 determined 4 years, overruling HH Judge Mole
  Q.C.

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FSS v ARUN DC

• 2007 JPL 237
• Section 171B(2) covers any breach of control
  which arises from the change of use of an
  building to a dwelling house.
• However, 10 year rule will still apply to
  conditions which seek to control use of an
  existing dwelling house, e.g. agricultural
  occupancy/holiday lettings only etc.

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(3) Proper approach to period of non-compliance

• The new, unlawful use must continue throughout
  the period in order for the immunity to accrue.
• It is material that the interruption in the use
  was not the result of a freely made choice on the
  part of the Claimant. What matters is that the
  objectionable use actually ceased and there was
  no longer any need or opportunity for the local
  planning authority to take enforcement action.

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Consistent COURT OF APPEAL AUTHORITY

• SOSE Ano V THURROCK BC 2002 EWCA Civ 226
  concerned use of land as airport.
• Swale BC v FSS 2005 EWCA Civ 1568

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DATE OF CHANGE

• The only effective test is to compare the present
  use with the previous use, or the use in the base
  year (i.e. normally 10 years prior to taking
  enforcement action) and assess whether there has
  been any material change.

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CONTINUOUS USE, BUT ACTIVITY CAN CEASE FROM TIME
TO TIME

• The question is whether Enforcement action can be
  commenced within the applicable 4 or 10-year
  period, even if at the moment of issue of the
  enforcement notice the activity objected to is
  not actually going on (e.g. because of holidays),
  because the land could still properly be
  described as being used for the objectionable
  activity.
• However, that did not apply once the activity had
  permanently ceased. An enforcement notice could
  not be issued in respect of a use that had ceased
  to be an active use before any planning right had
  accrued.

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Now you see it, now you dont

• Pub with accommodation up above
• Pub area used as part of residential
  accommodation.
• Obvious signs of that use cleared away when
  premises shown to potential buyers and upon
  planning officer visits.
• Inspector held that each time cleared away no
  enforcement action could be taken. Hence, 4
  years ran afresh.

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Miles v National Assembly of Wales 2007 EWHC 10
(Admin)

• The effect on the accrual of any immunity of the
  period of about 18 months beginning in the autumn
  of 2000 when no motorcycling activity took place
  on the land because of the outbreak of foot and
  mouth disease.
• The inspector found that the foot and mouth
  restrictions were an interruption notwithstanding
  intention to continue.
• Challenge failed.