Transcript ENFORCEMENT, TIME LIMITS & CHANGES OF USE

ENFORCEMENT,
TIME LIMITS &
CHANGES OF USE
JAMES FINDLAY
2-3 GRAY’S INN SQUARE
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.
THREE ISSUES
Section 171B(2)
• Dwellinghouse/use as a dwellinghouse
2. Change of use/breach of condition
Section 171B(2) and (3)
3. Proper approach to period of noncompliance
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.
(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
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.
“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.
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.
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.
Is it correct?
• “There is something unsettling about this
decision.” (Commentary in JPL)
• Strongly arguable that is inconsistent with Swale
(e.g. para’s 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)
(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.
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.
(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.
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
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.
CONTINUOUS USE, BUT
ACTIVITY CAN CEASE FROM
TIME TO TIME
• The question is whether Enforcement action can
be commenced within the applicable 4 or 10year 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.
Now you see it, now you don’t
• 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.
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.