Change of use — Breach of planning control — Enforcement action — Temporary sleeping accommodation — Time limit for taking enforcement action — Whether inspector’s decision to dismiss enforcement appeal lawful — Appeal dismissed
The appellant company owned a flat in London that had been used continuously from 3 January 1989 to 2 January 1999 as temporary sleeping accommodation within the meaning of section 25 of the Greater London Council (General Powers) Act 1973. However, from 15 February to 10 July 1999 (155 days), the flat had been occupied by K, on a series of back-to-back tenancies. Then, on 23 July 1999, the use of the flat reverted to that of temporary sleeping accommodation. In June 2003, the second respondent council issued an enforcement notice. This alleged that the use of the flat for short-term lettings was in breach of planning control and constituted a material change of use, from its lawful use as permanent accommodation, by virtue of section 25 of the 1973 Act. The company appealed, under section 289 of the Town and Country Planning Act 1990, against the planning enforcement notice.
The appellant contended, under section 174(2)(d) of the 1990 Act, that, at the date upon which the notice was issued, enforcement action could not be taken, because, under section 171B of the Act, any such action had to be taken within the 10-year period beginning from the date of the breach.
The inspector concluded that as at 3 January 1999, the use as temporary sleeping accommodation had been lawful and was therefore immune from enforcement action. However, the 155-day tenancy represented a significant break in any period of letting for less than 90 days, constituting residential occupation of a more permanent nature. The resumption of the short-term letting on 23 July 1999 constituted a material change of use within section 25. This, being development without planning permission, amounted to a breach of planning control.
Held: The appeal was dismissed.
The inspector was right to conclude that, on 23 July 1999, the use of the premises had changed from use falling outside the definition of “temporary sleeping accommodation” in section 25 to a use falling within that definition.
As a matter of law, lawful use rights would be lost following a subsequent material change of use. The effect of section 25 was that what might otherwise not constitute a material change of use could be deemed to have constituted such a change and, as a result, “development”, which required planning permission by virtue of section 57 of the 1990 Act. The material change in use also acted to extinguish any previously existing lawful use rights by operation of law: Panton v Secretary of State for the Environment, Transport and Regions [1999] 1 PLR 92 considered.
Section 25 was of broad application; there was no justification for limiting its effect so that it ceased to apply where a lawful use as temporary sleeping accommodation had been established, at any date and for any particular residential premises, regardless of how often the use of the premises changed to or from that of temporary sleeping accommodation.
Meyric Lewis (instructed by Lyndales) appeared for the appellant; Robert Palmer (instructed by the Treasury Solicitor) appeared for the first respondent; Lisa Busch (instructed by Westminster City Council) appeared for the second respondents.
Eileen O’Grady, barrister
