Change of use — Enforcement notice — Time limit for taking enforcement action — Second-bite provisions — Whether consideration of specific uses relevant to second-bite provisions — Whether alleged breach of planning control continuing for 10 years prior to issue of notice — Appeal dismissed
The appellants owned land that was subject to an enforcement notice that had been issued in 2003 by the second respondent local planning authority and upheld on appeal by an inspector appointed by the first respondent. The appellants sought to appeal against the inspector’s decision under section 289 of the Town and Country Planning Act 1990.
The notice alleged a breach of planning control by a material change of use, namely the introduction by the appellants of new uses for mixed commercial purposes within Classes B1, B2 and B8 of the Use Classes Order 1987. The notice identified 12 particular uses within those classes. These included some of the six classes that had been specified in an earlier notice, issued in 1999, which had been quashed on the basis that the case presented at the inquiry differed from that in the notice.
Section 171B(3) of the Town and Country Planning Act 1990 provided that, in the case of a breach of planning control, other than those involving building works, enforcement action could not be taken after the expiry of a 10-year period commencing with the date of the breach. Section 171B(4)(b) permitted further enforcement action if, within the four years preceding that action, the local planning authority had taken enforcement action in respect of the breach, or had purported to do so (second-bite provisions).
The appellants appealed against the later notice. The inspector decided that, considering the specific uses alleged, the second notice did not come within the second-bite provisions. The second notice had been issued afresh, and the 10-year limitation period ran from April 1993.
Held: The appeal was dismissed.
The inspector had directed himself correctly and had reached a decision reasonably open to him, applying the relevant principles, in finding that the second notice was wider in substance than the first, and not simply a more accurate description of what had been covered by the previous notice. Thus, the second notice had to be treated as a fresh one. It was necessary to focus on the actual mix of uses addressed, rather than on the general reference to certain use classes and sui generic uses, in order to determine whether the second notice related to the same breach of planning control as the first. It followed that the inspector’s approach, in looking at the specific issues identified in each notice and not just at the general description of the mixed use, was correct: Fidler v First Secretary of State [2003] EWHC 2003 (Admin) and Belmont Riding Centre v First Secretary of State [2003] EWHC 1895 (Admin) applied.
To gain immunity from enforcement under section 171B(3), it would be necessary to show that the use alleged to be in breach of planning control had begun more than 10 years prior to the date of the enforcement notice, and that that use had been continuous throughout the 10-year period. That was how the inspector had approached the matter in this case. His finding that activities on the site had declined to such a low level that no enforcement action could reasonably have been taken over the period 1993 to 1996 meant that the use had not been continuous throughout the 10-year period: Secretary of State for the Environment v Thurrock Borough Council [2002] EWCA Civ 226; [2002] JPL 1278 applied.
Ian Dove QC and Satnam Choongh (jnstructed by Hewitsons, of Cambridge) appeared for the appellants; John Litton (instructed by the Treasury Solicitor) appeared for the first respondent; Peter Harrison (instructed by the solicitor to Epping Forest District Council) appeared for the second respondents.
Eileen O’Grady, barrister
