Second respondent council issuing enforcement notice against change of use of structure on claimant’s land – Claimant appealing – Claimant contending immune from enforcement as structure used as single dwelling for more than four years – Inspector dismissing appeal – Whether inspector failing to have regard to physical works of conversion – Claim dismissed
The claimant lived in a mobile home on his land and used another structure on the land as a workshop. In June 1999 the second defendants, East Dorset District Council, issued an enforcement notice alleging the change of use of the structure to use as a dwelling. The claimant appealed against the notice on the principal ground that the structure had been used as a single dwelling for more than four years and was, accordingly, immune from enforcement action by virtue of the provisions of sections 174(2)(d) and 171B(2) of the Town and Country Planning Act 1990.
At the inquiry, the claimant gave evidence that a portable living cabin had been purchased in 1994 and installed in the structure, and that he had then begun to sleep in it. Proceeding upon that basis, the inspector none the less concluded that any residential use of the structure up until the material date was ancillary to the use of the mobile home, and that the claimant had failed to demonstrate that there had been a change of use to a single dwelling prior to June 1995. Consequently, the appeal was dismissed.
The claimant challenged the inspector’s decision pursuant to section 289 of the 1990 Act. It was submitted that the inspector had failed to apply the test in Impey v Secretary of State for the Environment (1984) 47 P&CR 157 and Backer v Secretary of State for the Environment [1982] 2 EGLR 166, namely that, when considering whether a change of use had taken place, both the physical state of the premises and the actual or intended use of them was important, and it was possible for a change of use to be constituted by physical acts of conversion alone. The claimant contended that the inspector had concentrated upon the actual use of the structure and had failed to take account of the physical works of conversion, namely the installation of the cabin. It was further contended that the decision of the inspector breached the provisions of the Human Rights Act 1998.
Held: The claim was dismissed.
1. Although the inspector could have dealt more expressly with the matter, it was clear from his decision, to an informed reader, that he was proceeding upon the basis that the cabin had been installed in the structure and that the claimant was sleeping in it. Thus, the only question left for him was whether sleeping in it constituted use of the structure as a single dwelling. Having found that the use of the structure was ancillary to the use of the mobile home, there was no need for the inspector to go any further and deal with the physical works of construction.
2. The enforcement proceedings brought by the council were concluded when the inspector made his decision, which was before the Human Rights Act 1998 came into force. The Act could only be relied upon in proceedings brought by a public authority, in respect of one of their actions performed before the Act came into force, where the proceedings were brought or ongoing after the Act took effect.
Celina Colquhoun (instructed by Philips & Co) appeared for the claimant; David Forsdick (instructed by the Treasury Solicitor) appeared for the first defendant; James Findley (instructed by the solicitor to East Dorset District Council) appeared for the second defendants.
Sarah Addenbrooke, barrister
