Town and country planning — Enforcement notice – Notice alleging unlawful change of use of appellant’s property and erection of various associated structures – Notice requiring cessation of use and removal of structures – Appeal on grounds (d) and (f) in section 174(2)(a) of Town and Country Planning Act 1990 – Whether notice lawfully requiring removal of structures as being part and parcel of unauthorised change of use where such development otherwise immune from enforcement action after expiry of relevant time limit – Whether removal of structures necessary to remedy breach of planning control – Appeal dismissed
The appellant owned a bungalow located in the green belt in Stanwell Moor, Staines. In August 2013, the second respondent council issued an enforcement notice alleging an unlawful change of use of that property from its lawful residential use to a mixed use for residential purposes and as an “Adults Private Members’ Club”, as well as the erection of various outbuildings, covered walkway, marquee-style structure and shed and the laying of hardstanding to create a car park. The notice required the cessation of the unlawful use, the reversion of the site to residential use and the removal of the outbuildings and hardstanding.
The appellant appealed against the enforcement notice pursuant to section 174(2)(a) of the Town and Country Planning Act 1990. Its grounds of appeal included ground (d), namely that, at the date of the enforcement notice, no enforcement action could be taken in respect of the alleged breach of planning control, and ground (f), that the steps required by the enforcement notice were excessive. In relation to the ground (d) appeal, the appellant did not contend that the change of use was itself immune from enforcement action but it argued that there could be no enforcement against the construction of the outbuildings and car park since those matters constituted “operational development” in respect of which the four-year time limit for enforcement prescribed by section 171B(1) of the 1990 Act had expired.
The first respondent’s planning inspector dismissed the ground (d) and, in relation to ground (f), varied the notice only to remove the requirement for the resumption of the lawful residential use of the site. While he found that the outbuildings and car park had been present for more than four years before the enforcement notice was issued, he concluded that, on a consideration of the case law, they could nonetheless be enforced against on the ground that they were part and parcel of, and integral to, the unauthorised change of use.
The appellant appealed under section 289 of the 1990 Act. He contended that the statutory scheme made a clear distinction between material changes of use and operational development and that the concept of operational development being “part and parcel” of an unauthorised change of use was alien to the statutory scheme. Those submissions were rejected in the court below: see [2015] EWHC 1654 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) In each case, it was necessary to focus on the true nature of the breach of planning control against which the local planning authority had enforced, since the nature of the breach dictated the applicable time limit under section 171B. In the instant case, the second respondents had alleged a breach of planning control by the making of an unauthorised change of use, namely the change of use of the site from residential use to a mixed residential and “Adults Private Members’ Club” use, together with the installation on the land of various structures in association with that mixed use, and the laying of the hardstanding for the car park that served it. The second respondents were entitled to regard the breach of planning control as not falling within the category of breach “consisting in” the carrying out of unauthorised operational development, to which the which a four-year time limit for enforcement under section 171B(1) would apply. They were entitled to regard the breach as “any other breach of planning control”, within section 171B(3), so as to be subject to the 10-year time limit there prescribed. The inspector was entitled to endorse that approach in determining the appeal.
The case was one where the unauthorised change of use entailed the carrying out of physical works to enable and facilitate the unauthorised use of the land. While some or all of those works comprised engineering or building operations, as a matter of fact and degree that did not, in itself, take the breach of planning control outside the ambit of section 171B(3) and into the scope of section 171B(1). In such a case, the remedy for the breach provided for under section 173(4)(a) could involve the removal of the works carried out in association with the unlawful change of use.
The relevant principle, which had been recognised and consistently applied in the relevant case law, was that an enforcement notice directed at a breach of planning control by the making of an unauthorised material change of use could lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself, provided that the works concerned were integral to or part and parcel of the unauthorised use. It did not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased, but it could extend to unauthorised changes of use where the associated works, if viewed on their own, would have become immune from enforcement under the four-year rule in section 171B(1) or would be outside the scope of planning control: Murfitt v Secretary of State for the Environment (1980) 40 P&CR 254, Somak Travel Ltd v Secretary of State for the Environment (1987) 55 P&CR 250 and Bowring v Secretary of State for Communities and Local Government [2013] EWHC 1115 (Admin); [2013] JPL 1417 applied: Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26; [2010] 1 EGLR 98 distinguished.
That case law did not purport in any way to modify the statutory scheme. It did not ignore the distinction between operational development and material changes of use that was now set out in section 55(1) of the 1990 Act, nor did it sanction any disregard of the time limits for enforcement now contained in section 171B, or enlarge the remedial provisions now in section 173(3) and (4). The principle that it established corresponded to the provision in section 173(4)(a) of the 1990 Act, which enabled a local planning authority to issue an enforcement notice specifying steps to be taken to remedy the breach of planning control by “restoring the land to its condition before the breach took place”. It therefore represented the lawful application of the statutory scheme to the particular facts and circumstances of the case in hand. It operated within the statutory scheme, not as an extension of it.
The principle did not embrace operational development of a nature and scale exceeding that which was truly integral to a material change of use as the alleged breach of planning control. Whether the principle applied in a particular case would involve questions of fact and degree for the decision-maker, and would depend on the particular circumstances of the case.
The inspector had not erred in his consideration of the ground (f) appeal. Under section 173(3) and (4) of the 1990 Act, the steps required by an enforcement notice could only be for the purposes of remedying the breach or any injury to amenity arising from that breach: Miaris v Secretary of State for Communities and Local Government [2016] EWCA Civ 75; [2016] EGLR 25 applied. They could not act against works pre-dating the breach, which were therefore no part of it. However, that did not mean that works carried out after the breach of planning control, and integral to the unauthorised use of the land, had to be considered as potentially available for a resumption of the previous lawful use, or for some other use that was lawful: Bowring considered. The inspector had been entitled to conclude that the enforcement notice should require the removal of the outbuildings and car park, which were part and parcel of and integral to the unauthorised use. In doing so, he had not misapplied the test of “necessity” in ground (f). He had been entitled to find that the removal of those structures was necessary if the breach of planning control was to be remedied and the site restored to its condition before the breach took place.
Saira Kabir Sheikh QC and Ned Westaway (instructed by Fortune Green Legal Practice Ltd) appeared for the appellant; Gwion Lewis (instructed by the Government Legal Department) appeared for the first respondent; Scott Stemp and Leanne Buckley-Thomson (instructed by the legal department Spelthorne Borough Council) appeared for the second respondents.
Sally Dobson, barrister
