Mobile home – Green belt – Open leisure use – Appeal site within green belt being used for open leisure purposes – Second respondent authority issuing enforcement notice requiring removal of caravan on site in breach of planning control – Appellant challenging notice – Planning inspector upholding notice – Whether inspector erring in law – Appeal dismissed
For many years, the appellant’s predecessors had occupied the appeal site, located within the green belt, for “open leisure” purposes. In November 2005, the second respondent local planning authority issued an enforcement notice alleging breach of planning control consisting of a material change of use from open leisure purposes to a mixed use for open leisure purposes and for the stationing of a caravan for purposes of human habitation.
The appellant appealed against the notice to the first respondent secretary of state under section 174(2) of the Town and Country Planning Act 1990. He accepted that there had been a breach of planning control in the past, but argued that it was immune from enforcement action since the change of use had commenced in the 1970s and subsequently subsisted in excess of the 10-year period during which enforcement action could be taken pursuant to section 173B(3) of the 1990 Act with no abandonment of the use or any material change occurring during any later period of inactivity.
An inspector appointed by the first respondent found that, as a matter of fact and degree, a material change of use had occurred in the 1970s when the caravan became permanently stationed on the appeal site and used regularly for human habitation until the 1990s, when that use ceased. On 27 July 1992, when the amended section 191 and the new section 171B of the 1990 Act came into force, the unlawful use of the site had ceased, the breach of planning control had come to an end and there was no activity against which the second respondent could have taken enforcement action until activity resumed when the appellant acquired the site in 2001. Further, the inspector rejected the appellant’s argument that the existence of a shell of a caravan on the site had indicated that it was still capable of human habitation and that there had been no intention to abandon such use. The appellant appealed under section 289 of the 1990 Act.
Held: The appeal was dismissed.
On the evidence, the inspector had been entitled to conclude that lawful use rights in respect of human habitation/residential occupation of the caravan could not be accrued on the date that the new 1990 Act enforcement provisions came into force, if that use, which had been carried on for more than 10 years, was not actually being carried on and/or was dormant at that date. It was only after lawful use rights had been accrued that a use could become dormant without losing those rights: Panton v Secretary of State for the Environment, Transport and the Regions [1999] JPL 461 distinguished.
The question for the inspector was whether the unlawful use had ceased in 1992, not whether there had been an intention to abandon that use of the caravan. In all the circumstances the inspector was entitled to conclude that the use of the caravan for human habitation had ceased. Cessation of lawful use, which was not immune from enforcement action, was not to be equated with unlawful use, which was immune.
Meyric Lewis (instructed by Sharpe Pritchard) appeared for the appellant; James Maurici (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent did not appear and was not represented.
Eileen O’Grady, barrister
