Claimant local planning authority issuing enforcement notices upon second defendant – Material change of use – Second defendant contending immune from enforcement as use commencing 10 years prior to notice – Inspector allowing appeal – Claimant appealing – Whether inspector erring in approach to whether use was immune – Claim allowed
In July 1999 the claimant local planning authority served two enforcement notices upon the second defendant (H), one of which alleged an unlawful change of use of land from domestic and agricultural purposes to use for domestic purposes and as an airfield. The notice did not require a cessation of all activities on the land connected with its use as an airfield and storage of aircraft. H appealed, contending that the use had commenced more than 10 years prior to the issue of the enforcement notice.
In his decision letter, the inspector considered Panton v Secretary of State for the Environment, Transport and the Regions [1999]1 PLR 92, which he found to be “a forcible reminder that a material change of use is a once and for all event”. The inspector held that a material change of use had taken place in the early 1980s, when an aircraft advertisement enterprise had operated from the site for a period of two years. After finding that there was no clear evidence of abandonment of the airfield use since that enterprise ceased, he concluded that “as a consequence… the airfield operation of 1983 was not materially different from the present usage of the site, which has therefore continued for more than 10 years”. The inspector allowed the appeal under section 174(2)(d) of the Town and Country Planning Act 1990, and the enforcement notice was quashed.
The claimants appealed pursuant to section 289 of the Act, the principal issue being whether the inspector had adopted the correct approach when considering whether the use defined in the notice was immune from enforcement.
Held: The appeal was allowed.
In cases where the change of use was a gradual process, involving fluctuations in intensity and shifts in precise location, the only effective test was to compare the present use with the previous use, or the use in the base year, and assess whether there had been any material change. The rationale of immunity from enforcement was that, throughout the relevant period of unlawful use, the planning authority, although having the opportunity to take enforcement proceedings, had failed to do so, so that it was now unfair and/or unnecessary to permit enforcement. It followed that if, at any time during the relevant period, the local authority would not have been able to take enforcement proceedings in respect of the breach, then any such period could not count towards the rolling period of years that gave rise to immunity. Since the burden was upon the recipient of the notice to establish a defence, that burden involved establishing that enforcement action could have been taken at any time during the relevant period. The inspector had been misled by his consideration of Panton. The case before him required consideration as to whether, notwithstanding what occurred in the early 1980s, the present use had continued for 10 years. However, because he approached the case in the wrong way, he did not properly consider the present use, nor the use over the relevant period. Although the inspector identified the correct issue before him, he applied the wrong approach to it.
John Hobson QC and Clare Lockhart (instructed by the solicitor to Thurrock Borough Council) appeared for the claimants; Timothy Corner (instructed by the Treasury Solicitor) appeared for the first defendant; Stephen Hockman QC and Kevin Leigh (instructed by Jennings Son & Ash) appeared for the second defendant.
Sarah Addenbrooke, barrister
