Town and Country Planning Act 1971 — Appeal under section 246 against decision of inspector appointed by Secretary of State upholding an enforcement notice served by the London Borough of Camden — Breach of planning control alleged was the making without planning permission of a change of use of a building to use as a single dwelling-house, as mentioned in section 87(3)(c) of the Act — Two-storey structure originally erected without permission in curtilage of a house and used at different times for different purposes — Sole issue was as to when use as a single dwelling-house began and whether enforcement notice was served within four years of that date — Inspector found that, although the building in question had been used earlier for sleeping and eating and for temporary residential purposes, it had not been used ‘as a single dwelling-house’ until well within the four-year period — Inspector had dismissed the appeal on this ground and he also held that it failed on the ground mentioned in section 88(1)(b) (that the matters alleged did not constitute a breach of planning control) — Important submission addressed to the court, based on the unreported decision of the Divisional Court in Impey v Secretary of State for the Environment, that a change of use can be constituted by physical works of conversion alone, and that on this basis the enforcement notice might have been served more than four years from the date of the breach — Judge held that he was bound by Divisional Court’s decision in Impey’s case and that the matter must be remitted to the Secretary of State for rehearing and determination in the light of that decision — Appeal accordingly allowed
This was an
appeal by Rodney Greville Backer against an inspector’s decision upholding an
enforcement notice served by the London Borough of Camden in respect of the use
of a two-storey building in the grounds of 18 East Heath Road, Hampstead,
London NW3.
Daniel Robins
(instructed by Bennetts & Partners) appeared on behalf of the appellant; J
Sullivan (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State; the second respondents, the London Borough
of Camden, were not represented and took no part in the proceedings.
Giving judgment,
Mr DAVID WIDDICOMBE QC said: This is an appeal by Mr R G Backer under section
246 of the Town and Country Planning Act 1971 against the decision of an
inspector appointed by the Secretary of State for the Environment upholding an
enforcement notice served by the London Borough of Camden in respect of the use
of a certain two-storey building owned and occupied by Mr Backer at the rear of
18 East Heath Road, London NW3. An appeal under section 246 lies on a point of
law, and if the court is of opinion that the decision was erroneous in point of
law its duty is to remit the matter to the Secretary of State with the opinion
of the court for rehearing and determination by him.
The
enforcement notice dated July 7 1980 alleged that there had been a breach of
planning control by the development of the land in question by the making of a
material change in its use to use as a dwelling unit without the grant of
planning permission, and it called on Mr Backer to discontinue the use of the
land as a dwelling unit.
The notice
further alleged that the development was commenced within the period of four
years immediately preceding the date of the service of the notice, that is on
or after July 7 1976. This is because section 87(3)(c) of the Act of 1971
applies a four-year limitation period on enforcement proceedings where the
development alleged to be in breach of planning control consists of ‘the making
without
dwelling-house’. It is not clear why the enforcement notice used the term
‘dwelling unit’ instead of ‘dwelling-house’, but nothing turns on it. It was
common ground that a material change of use to use as a single dwelling-house
had taken place, and that the only issue in this appeal was whether the
inspector had erred in point of law in holding as he did that that development
had taken place after rather than before July 7 1976.
The
inspector’s decision letter, dated July 7 1981, is unsatisfactory in that it
does not contain any separate statement of his findings of fact, but it appears
from his conclusions, which I shall quote in a moment, that he accepted the
factual evidence of both the appellant and the local planning authority.
The main
facts, which are not in dispute, can be stated as follows. The appeal building,
known as Building C, is a small two-storey structure measuring some 16 1/2 ft
by 8 ft which was at one time within the curtilage of 18 East Heath Road. It
was erected without planning permission in about 1957 or 1958, and up to 1965
it was used by Mr Backer as a studio office. Between 1965 and Easter 1974 it
was let as a studio.
From Easter
1974 onwards work was carried out to convert or adapt the building to
residential use. This included the fitting of a timber floor to the upper
storey, the surfacing of the ground floor with wooden blocks, the plastering of
walls and ceilings, the installation of steel window-frames, the
partitioning-off of an area for bathroom and wc, the fitting of a bath and wc,
the connection to main drainage, and the installation of electrical wiring and
sockets. This work was completed or substantially completed by July 1976.
During this
time the building was unoccupied except for two periods. For about six months
from the time the work started a Mr Reddington, a carpenter employed at the
premises for these and other works, lived in the building. He used water from a
tap just outside the building and a lead provided from an adjacent building to
operate a kettle and a hot plate.
The second
period started in January 1976, when Mr Backer allowed his brother, Mr A E P
Backer, to use the building. Mr A E P Backer had been evicted by the police
from his flat in Tooting and in the process had lost all his belongings kept
there. His job was guarding industrial premises, using guard dogs which he kept
in a van. He kept his van with the guard dogs and the few possessions left him
at a car park near Building C. He virtually only slept in the building, moving
his mattress to and from the van each day, as workmen were working in the
building during the day-time. He used a frying pan and kettle for cooking his
evening meal at the site. There was a small table and chair, and some fitted
wall cupboards in the kitchen. The bathroom was not at that time connected to
the water supply and he bathed at public baths. He was normally absent with his
van and dogs until between 6 and 11 pm each day. From the end of 1976 he had a
job as a night watchman in Croydon, but continued to use the building as his
only residential base. Mail for Mr Backer’s brother was delivered to 18 East
Heath Road, but the address in his car log book dated December 1976 was ‘rear
of 18 East Heath Road’. Mr A E P Backer continued to use the building until
January 1978.
Officers of
the council who visited the premises in September and October 1975 found no
sign of residential occupation. The only furniture was a wardrobe and three
rolls of carpet. The ground floor appeared to be used as a builders’ store and
the first floor was in process of being fitted out for residential use. A
further visit was made in October 1976 shortly after but close to the material
date, and again no signs of residential occupation were found. The first floor
was being used for limited storage, and contained a small chest of drawers, a
number of boxes and a portable partition. There was no other furniture. The
position was much the same at the date of a further visit in July 1977.
In January
1978 Mr Backer himself began to occupy the building as his London residence,
and furnished it. From then on it was continuously occupied and used
residentially by either Mr Backer or his tenants. At the time of the
inspector’s view in connection with the appeal against the enforcement notice
the building was occupied and used as a self-contained dwelling.
The
inspector’s conclusions were as follows:
42. With
regard to the appeals on ground 88(1)(c), I am of the opinion that section
290(5) of the 1971 Act is mainly concerned with section 41, and cannot be used
to define the time when a breach of planning control first occurred within the
context of section 87(3). For instance, in the case of operational development,
the breach of planning control is taken to occur when the operations have been
substantially completed rather than begun.
43. In these
appeals the only development concerned is the making of a material change in
use of Building C to use as a dwelling unit after July 7 1976. I can find no
reason to reject the evidence given on your clients’ behalf concerning the use
made of this building to accommodate Mr Reddington in 1974 while he worked at
the appeal premises. That use was, however, temporary, did not provide him with
a permanent place of residence and, owing to the almost complete lack of any of
the equipment, furniture and fittings normally required for residential use,
did not amount in either fact or degree to a dwelling unit.
44. While
accepting that Mr A E P Backer slept in and used Building C as his address, and
sometimes cooked his evening meals there, during the period January 1976 to
1978, I also accept the factual evidence given by both Mr Backer and officers
of the council who visited the site that throughout this period work slowly
progressed towards fitting the building out for future use as a completed
dwelling, that anyway up to July 1976 most of the equipment furniture and
fittings required for residential use were still lacking, and that there were
no obvious signs of anyone using the building as a home. From that I conclude
that prior to July 1976 the accommodation available to Mr A E P Backer had not
amounted either in fact or degree to use as a dwelling unit. The appeal on
ground 88(1)(c) therefore fails.
I can omit
paragraph 45, but I should read paragraph 46:
The use as
studios between 1965 and 1974 may or may not have amounted to a material use,
but in any case this use ceased when the building started to be adapted for
residential purposes, a process which lasted between 1974 and 1978. As set out
above, the use of the building during that period for accommodation did not
amount to a material use. Its use from 1978 onwards for residential purposes,
either as the main London residence of Mr R G Backer or as a dwelling for other
persons otherwise unconnected with 18 East Heath Road amounted to a material
change of use from no use to that of a separate dwelling unit, as alleged in
the notice. As no planning permission for this change has been given, the
appeal on ground 88(1)(b) also fails.
On these
conclusions the inspector dismissed the appeal on the four-year limitation
point.
Mr Robins for
the appellant first contends that the date at which the change of use took
place in this case is fixed by section 290(5)(c) of the Act, which provides
that where the development consists both of the carrying out of operations and
a change of use, the development shall be taken to be initiated, in the
circumstances of this case, at the date when the operations were begun However,
he accepted that this point is not open to him in this court, because it was
decided against him by a Divisional Court in the unreported case of Burn
v Secretary of State for the Environment (March 16 1971)*, albeit on
grounds different from those given by the inspector in para 42, which I cited
above. He reserved the point for possible argument elsewhere.
*A report was
published at 219 EG 586.
His argument
in this court was that development by change of use could, and in this case
did, take place as a result of the physical works of conversion to a
residential unit which took place before July 7 1976 and that it was not
necessary to consider whether the use made of the premises by Mr Reddington and
Mr A E P Backer constituted use as a dwelling-house. He relied for this on the
decision of a Divisional Court in the unreported case of Impey v Secretary
of State for the Environment (November 21 1980), which had come to light
since the inspector’s decision. He contended that the inspector had erred in
law in not approaching the case on that basis. If regard was had to the use
made by Mr Reddington and Mr Backer, Mr Robins contended that the inspector had
taken too narrow a meaning for ‘dwelling-house’ and that the use of the
premises by those persons did constitute use as a dwelling-house. With leave of
the court, he added a further ground to his notice of motion as follows:
‘Having regard to the matters set out in paragraph 1 of the notice of motion,
the reasons given by the inspector for his decision were unintelligible and
ambiguous.’
Mr Sullivan
for the Secretary of State defended the inspector’s decision, and contended
that works of adaptation by themselves could not give rise to a change of use,
and drew attention to the distinction drawn throughout the Town and Country
Planning Act between building operations and change of use. He referred to Parkes
v Secretary of State for the Environment [1978] 1 WLR 1308. He contended
that the inspector had adopted a correct test for the meaning of dwelling-house
and that the use made of the building by Messrs Reddington and Backer before
July 7 1976 was not use as a dwelling-house. Once the correct test was applied,
the decision was a
But for Impey’s
case I should have no hesitation in accepting Mr Sullivan’s argument that
physical works of conversion, that is building operations, cannot by themselves
give rise to a material change of use; some actual user is required. The Act of
1971 keeps operations and change of use quite distinct and separate. They are
separate items in the definition of development in section 22 of the Act, and
the distinction is recognised in other sections of the Act, for example,
sections 32, 33, 45 and 51. In Parkes v Secretary of State for the
Environment [1978] 1 WLR 1308 the Court of Appeal founded its judgment on
this distinction.
However, in Impey’s
case there is no escaping the fact that the matter was remitted to the
Secretary of State by the Divisional Court to reconsider on the basis that the
works of conversion might by themselves have constituted a change of use to
residential. Although the facts of Impey’s case are not set out in full
in the judgment, it is clear that works of conversion to residential use had taken
place but that actual user for residential purposes had not started. Donaldson
LJ said:
If the
Secretary of State in this case had said that he was satisfied on the evidence
that no change of use had occurred, and had made it clear that his conclusion
was not based upon the fact that the premises had not yet been used for
residential purposes, his decision would, I should have thought, have been
clearly upheld. But I am not satisfied on the paragraph to which I have
referred that he was reaching that conclusion. His wording seems to me to be
wholly consistent with either his reaching that conclusion as a matter of fact
and degree or with his misdirecting himself in law and saying to himself
‘Nobody has yet used these premises.’
Later (at p
10) the learned lord justice said:
Applying that
to this case, I would say that the physical state of these premises is very
important but it is not decisive. Actual use or intended use or attempted use
is important but not decisive. These matters have to be looked at in the round.
Hodgson J
agreed and the case was remitted to the Secretary of State.
I find no
difficulty in accepting that any physical works which may have taken place are
relevant in deciding whether there has been a material change of use. That is
what Upjohn LJ pointed out in Howell v Sunbury-on-Thames Urban
District Council [1964] 62 LGR 119 at p 130 where he said:
. . . I agree
that development by works and development by user are different matters and
must be considered separately, but when one is considering whether there has
been a material change in the use of buildings or land one must first consider
the site as a whole and then, as a matter of commonsense, compare the user
before the critical date and after the critical date. When doing that, any
changes in the physical state of the land must be taken into account as an
element, for, if this is ignored, the user before and the user after cannot be
properly assessed and compared. In some cases, and I think in this case, the
change in the physical state of the land must be an important element; in other
cases it may be entirely unimportant; but it seems to me you cannot, as an
element, disregard the physical state of the land before and after.
This was cited
in Impey’s case, but it does not support the proposition that building
operations without any actual use can constitute a material change of use. In Howell’s
case the facts show that both physical changes and actual use had taken place.
In Impey’s
case the appellant appeared in person and the court heard legal argument only
from the local planning authority and the Secretary of State. Although it may
be, therefore, that the matter was not argued as fully as it has been before
me, I am bound by the decision in Impey’s case, and must give effect to it.
In the present case it is clear that in holding that the change of use had
taken place after and not before July 7 1976 the inspector did not consider the
possibility that the change of use had been constituted by the physical works
of conversion alone. He did not consider it for the simple reason that it was
not argued before him, the unreported decision in Impey’s case not
having then been discovered.
Whether the
inspector took the works of conversion into account as well as the actual use
in determining whether the change of use took place is not clear; certainly he
was mainly considering the actual use alone. In my judgment he did therefore
err in law, and the matter must be remitted to the Secretary of State to ‘look
at in the round’ as Donaldson LJ put it, on the basis that ‘the physical state
of these premises is very important but it is not decisive. Actual use or
intended or attempted use is important but not decisive’.
What is clear
from the inspector’s decision is that he did not regard the actual use of the
premises before July 7 1976 as amounting to use as a dwelling-house. As this
was fully argued before me it may help hereafter if I record my views on it.
The question is the meaning of the words ‘use as a single dwelling-house’ in
section 87(3)(c) of the Act. ‘Dwelling-house’ is not defined in the Act. In my
judgment it is narrower than ‘residential use’. There are many varieties of
residential use. For example, multiple occupation, bed-sittingrooms, hostels,
guest houses and hotels can all be described as residential use. I do not think
the inspector erred in law in holding that the use made of the building by Mr
Reddington and Mr A E P Backer fell short of use as a dwelling-house. It was
residential use but not use as a dwelling-house. The word ‘dwelling-house’
occurs in the Rent Restriction Acts, and the distinction between mere
residential use and use as a dwelling-house has been drawn under those Acts. Of
course a word used in one Act is not necessarily a guide to the meaning of that
word in another unrelated Act. But the following passage from the judgment of
Evershed J giving the judgment of the Court of Appeal in Macmilland & Co
Ltd v Rees [1946] 1 All ER 675 at p 677 does appear to me to be
applicable to the word ‘dwelling-house’ in the Planning Act:
It is, no
doubt, true that the acts of sleeping upon premises at night and having meals
upon them by day are acts which may be described as ‘residential’ in character.
But the use of premises as a dwelling-house is by no means necessarily confined
to their use by the tenant for sleeping and eating. The experience of great
numbers of Englishmen during the last six years provides many instances of
sleeping and eating upon premises which could by no fair use of language on
that account be described as dwelling-houses. In other words, to sleep on
particular premises at night, or to have one’s meals upon them by day, or both,
ought not ipso facto to have the effect in law of making those premises
a dwelling-house. . . .
Therefore,
there will be judgment for the appellant and I remit the matter to the
Secretary of State for rehearing and determination in accordance with the
opinion of this court.
The appeal
was allowed with costs. Leave to appeal was given if necessary.