Council serving enforcement notice alleging change of use and requiring use of any part of building as a dwelling-house to cease – Appellants contending use of part of building as single dwelling continuing for more than four years prior to notice – Whether enforcement action in relation to that part of building invalid – Whether appellants entitled to revert to prior lawful use – Whether notice too wide – Appeal allowed
In September 1992 the appellants jointly acquired land in Calne, Wilstshire, upon which stood a building with planning permission for use as an agricultural store. In November 1999 the second defendants, North Wiltshire District Council, issued an enforcement notice alleging a change of use of the building from use as an agricultural store to use as a dwelling. The notice required that the use of any part of the building as a dwelling cease within three months, and that the appellants remove domestic fixtures and fittings within one month thereafter.
On an appeal against the notice, pursuant to section 174(2)(d) of the Town and Country Planning Act 1990, the appellants contended that the notice had been issued outside the four-year statutory time limit laid down, by section 171B(2) of the Act, for enforcement against a change of use of any building to use as a single dwelling-house. The inspector dismissed the appeal, although he increased the time for compliance to six months.
The appellants appealed under section 289 of the Act, contending that the enforcement notice was too wide, as it purported to prevent them from using any part of the building as a dwelling, when they had, by virtue of section 171B(2), acquired the right to use at least part as a single dwelling-house. They relied upon section 57(4) of the Act, which provided that, following an unauthorised development and the issue of an enforcement notice, no further permission was required to revert back to the previous lawful use. The respondent argued that, even if the occupation of part of the building could correctly be described as use of that part as a domestic dwelling, that use ceased for good once the whole of the building was used for the same purpose. It was common ground that, following the decision of the Court of Appeal in Van Dyck v Secretary of State for the Environment [1993] 1 EGLR 186, the reference to “building” in section 171B(2) included a part of a building, and that, accordingly, no enforcement proceedings could be taken in respect of a part of the building that had been used as a single dwelling-house for four years or more.
Held: The appeal was allowed.
The appellants had to show that: (i) the inspector had found that part of the building was used as a single dwelling, or at least arguably so, prior to November 1995; and (ii) the enforcement notice unlawfully barred that use for the future. As to (i), the inspector had not reached a concluded view about whether part of the building had ever been used as a single dwelling-house, but he did appear to have accepted that it might have been. Accordingly, the only question was (ii): whether the terms of the enforcement notice, which stopped the claimants from using any part of the building as a dwelling, could lawfully stand as they were. If the respondent’s contentions were right, there would be many cases where it might be argued that a prior lawful use had in some way become subsumed into an unlawful use so as to be lost forever. There was no justice or logic in such a result, and no reason why the principle in section 57(4) should not operate so as to permit the continued use of part of the building as a dwelling. Accordingly, the matter was remitted.
Robert Fookes (instructed by Foot Anstey Sargent, of Plymouth) appeared for the appellants; Timothy Corner (instructed by the Treasury Solicitor) appeared for the respondent.
Thomas Elliott, barrister
