Islington London Borough Council v Secretary of State for Housing, Communities and Local Government and another – Town and country planning – Enforcement notice – Change of use – Inspector allowing appeal against enforcement notice issued by appellant local authority for change of use of basement from professional to residential use without planning permission – Appellant appealing – Whether inspector misunderstanding and/or misapplying law regarding immunity from enforcement action against material change of use – Appeal allowed
The second respondent was in business as an estate agent on the ground floor of premises at 85 Newington Green Road, London, N1. The ground floor and the basement had an established A2 use (financial and professional services) under the Use Classes Order. The upper floors were in residential use. In early 2013, the basement was converted into a residential flat and it was leased to a tenant from 11 April 2013 until October 2013 when the lease expired. The basement was then “gutted” during a period of renovations from October 2013 to May 2014.
In 2017, the alleged breach of planning control was brought to the attention of the appellant local authority and the appellant issued an enforcement notice in January 2018 in respect of the change of use without planning permission. An inspector appointed by the first respondent secretary of state allowed an appeal by the second respondent under section 174(2)(d) of the Town and Country Planning Act 1990. He concluded that the basement had been in continuous use as a dwelling from at least 11 April 2013, including the period of renovations, and therefore a material change of use occurred more than four years before the enforcement notice was issued and no enforcement action could be taken.
The appellant appealed under section 289 of the 1990 Act contending, amongst other things, that the inspector had misunderstood and/or misapplied the law regarding immunity from enforcement action against a material change of use under section 171B(2) of the 1990 Act which granted immunity where the relevant time limit had expired. In deciding whether there had been continuous use, the inspector wrongly applied a presumption of continuance, and took into account impermissible factors such as the second respondent’s intentions and whether the basement was habitable. Furthermore, the inspector had erred in relying upon the characteristics of a dwelling house as identified in Gravesham Borough Council v Secretary of State for Environment (1984) 47 P & CR 142, as that was directed to the different question of determining what was a dwelling house.
Held: The appeal was allowed.
(1) The inspector ought to have applied the guidance in the cases of Thurrock Borough Council v Secretary of State for the Environment [2002] EWCA Civ 226; [2002] PLR 43 and Swale Borough Council v Secretary of State for the Environment [2005] EWCA Civ 1568; [2006] PLSCS 19. The rationale of the immunity was that throughout the relevant period of unlawful use the local planning authority, although having the opportunity to take enforcement action had failed to take any action and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. At the inquiry in the present case, the statutory test which the inspector had to apply under section 171B(2) was whether the enforcement action had been “taken after the end of the period of four years beginning with the date of the breach”. The legally correct question was whether the building had been used as a single dwelling throughout the whole of the four years, so that the appellant could at any time during that period have taken the enforcement action. There was a single test, namely, a continuous breach by use as a dwelling, such that the planning authority could have enforced against the breach. The rationale of the immunity provision was that the planning authority had a four-year window in which to take enforcement action, after which it would lose the right to object to the development. An example was a building in which residential use had ceased, but the owner intended to resume residential use at a later date. In those circumstances, the planning authority would not be entitled to serve an enforcement notice merely on the basis of the owner’s intention, and so the test would not be satisfied. The same reasoning could apply in circumstances where a building had been stripped down to a shell unit, and the unauthorised residential use and breach of planning control had ceased, and so could not be enforced against by the planning authority during that period, even if the owner intended to resume residential use at a later date; whether or not the statutory test was satisfied would depend upon the factual findings in the particular case.
(2) The inspector’s reliance on the submission that Gravesham established that continuous residential occupation was not a requirement for a building to be “a dwelling house” and that, therefore, “use as a single dwelling house” did not require continuous residential occupation, had led to an error of law. Gravesham was not an enforcement case and so the court was not applying the test under section 171B(2) of the 1990 Act. It was concerned with a different issue, namely, the definition of a dwelling house for the purposes of the General Development Order. It was not relevant for the court to distinguish between an established residential use, which could only come to an end by operation of law, and an unauthorised residential use for which immunity from enforcement could only be obtained by proving continuous residential use throughout the relevant period. However, that distinction was highly relevant to the appeal before the inspector.
(3) The inspector’s reliance on the intention to resume residential use in the future was contrary to the guidance given in Swale. A building might well not be in continuous use for residential purposes and yet the owner fully intended to resume occupation for such purposes at a future date. The existence of such an intention would not by itself entitle the planning authority to serve an enforcement notice when the building was not being residentially used. The decision-maker was required to consider not the building’s availability or suitability for residential use, but whether it was actually put to such use. In all the circumstances, the inspector had misdirected himself and misapplied the relevant law.
Charles Streeten (instructed by London Borough of Islington Legal Services) appeared for the appellant; Leon Glenister (instructed by the Government Legal Department) appeared for the first respondent; Rosie Scott (instructed by Attwells Solicitors LLP) appeared for the second respondent.
Eileen O’Grady, barrister
