PP 2004/20

An unlawful use of premises will become immune from enforcement action, and therefore lawful, after 10 years’ uninterrupted use. R (on the application of Fairstate Ltd) v First Secretary of State [2004] EWHC 1807; [2004] PLSCS 169 concerned the circumstances in which that immunity can be lost. The case concerned residential premises in Westminster that were used as temporary sleeping accommodation. Section 25 of the Greater London Council (General Powers) Act 1973 (the 1973 Act) provides that such use involves a material change of use of the premises. “Temporary sleeping accommodation” is defined as residential premises that are occupied by the same person for less than 90 consecutive nights and provided for consideration arising either by way of trade or by reason of employment irrespective of whether a relationship of landlord and tenant has been created. The provision aims to preserve the pool of residential accommodation available to permanent residents in Greater London. Normally, a change of use must be “material” in order to constitute “development” requiring planning permission. Section 25 removes any uncertainty as to whether a change from permanent residential accommodation to temporary sleeping accommodation is material. Fairstate also concerned the circumstances in which an occupier can revert to the previous use of premises if the existing use is deemed unlawful. Section 57(4) of the Town and Country Planning Act 1990 provides that where an enforcement notice has been issued, planning permission will not be required to use the land for the purpose for which it could lawfully have been used had the unlawful development not been carried out. By virtue of Section 25 of the 1973 Act, the court held that a return of permanent residential occupation (which exceeds the defining 90-day period) to use as temporary sleeping accommodation involved development. That development had taken place without planning permission and the court determined that this was a fresh change of use upon which the enforcement notice could bite. In effect, immunity had been “lost”. This case highlights the vulnerability of uses that become lawful by being immune from enforcement action, and the potential dangers in ceasing an immune use. It is important to note that the right to revert to the last lawful use is possible only if that use is lawful. If the section 57(4) previous use is itself unlawful, the property will have no lawful use and planning permission will be required for any subsequent use. In Fairstate, section 57(4) could not help the appellant because when the second change of use to temporary sleeping accommodation took place, the previous lawful use of the land had been permanent residential accommodation. Planning permission would have been required under Section 25 in order to revert back to the previous temporary sleeping accommodation use. The rather strange conclusion in this case was that the reversion back to the lawful use resulted in that lawful use being abandoned. The argument that there is a right to revert to the previous lawful use, without the need for an enforcement notice, has previously been accepted by the High Court. Fairstate, however, will give the authorities greater confidence to prevent a reversion to other uses that they find unacceptable. Pending any appeal, it should be assumed that in the absence of an enforcement notice, planning permission will be required to revert back to previous, lawful use from a current, unlawful use. David Williams is a partner in the real estate department at Allen & Overy. Related article: Court backs enforcement notice against London landlord