Planning permission for extension — Condition against use as independent residential accommodation — Breach of condition — Relevant time limit for enforcement action — Section 17B of Town and Country Planning Act 1990 — Judge applying 10-year limit — Appeal allowed
The first respondent council granted planning permission for an extension to a property in order to accommodate a dependent relative of the owner. One of the conditions attached to the permission was that if vacated by the relative, the extension was to be used only for purposes incidental to the main property as a single dwellinghouse, and it was not to be used as independent residential accommodation.
In 2004, the council served an enforcement notice on the owner on the ground that the extension had been occupied since 1996 as student accommodation in breach of the condition. On an appeal to the secretary of state, an inspector found that the notice had been served out of time because the breach came within section 171B(2) of the Town and Country Planning Act 1990, which specified a time limit of four years for issuing an enforcement notice for a breach of planning control by virtue of a material change of use of any building to use as a single dwellinghouse.
That decision was reversed on an appeal by the council, on the ground that the applicable time limit for breach of a condition was the 10-year period for “any other breach of planning control” laid down in section 171B(3). The secretary of state appealed, contending that the scheme of section 171B was to provide a 10-year time-bar for breaches of planning control in the form of material changes of use, with the sole exception of change of use to a single dwellinghouse, whether material or not. The council argued that section 171B(1) and (2) were concerned only with breaches of planning control in the form of development without permission, within section 171A(1)(a), and that the only place for a breach of condition under section 171A(1)(b) was as an “other breach of planning control” in section 171B(3).
Held: The appeal was allowed.
Section 171B(2), read with section 171A(1) and the remainder of section 171B, applied the four-year bar to a breach of a condition as to, or limitation on, change of use to a single dwellinghouse, whether or not that change of use constituted a material change amounting to impermissible development. The legislation was unambiguous in first defining a failure to comply with any condition attached to a planning consent as a breach of planning control (in section 171A(1)(b)), and in then providing, in section 171B(2), that where such a breach consisted in change of use to a single dwellinghouse, any enforcement action had to be taken within four years. That construction of section 171B(2) was of a piece with the pattern established by its statutory predecessors and such interpretation as they had been given by the courts, which showed a clear legislative intent that, unlike other changes of use, householders who changed the use of a building to use as a single dwellinghouse should be vulnerable to enforcement action only if it was instituted within four years from the change: King’s Lynn and West Norfolk Borough Council v Secretary of State for the Environment [1995] JPL 730 and Camden London Borough Council v Backer [1982] JPL 516 considered.
In the instant case, the change from use ancillary to the main house to independent use as student accommodation was clearly a “breach of planning control” consisting in a “change of use” to use as a separate single dwellinghouse, within the meaning of section 171B(2). The breach of planning control fell squarely within the words of section 171B(2), and was therefore enforceable for a period of only four years following the breach.
Paul Brown and Jonathan Auburn (instructed by the Treasury Solicitor) appeared for the appellant; Anne Williams and Emmaline Lambert (instructed by the legal department of Arun District Council) appeared for the respondents.
Sally Dobson, barrister
