Moore v Secretary of State for Communities and Local Government
Lord Neuberger MR and Longmore and Sullivan LJJ
Planning control – Change of use – Enforcement notice alleging change of use of property from dwelling to commercial leisure accommodation – Notice upheld by planning inspector – Whether permitted use as dwelling including use as holiday accommodation – Whether notice too wide in its terms – Appeal dismissed.
The appellant owned a property that had formerly been converted into, and occupied as, an eight-bedroom family dwelling pursuant to a planning permission granted in 1999. From 2008 onwards, the appellant, through her company, used the property for short-term holiday lets. The house was advertised as accommodating groups of up to 18 people, with two more on a sofa bed, and was generally let for short periods of three, four or seven nights.
The local planning authority issued an enforcement notice alleging a breach of planning control by a change of use, without planning permission, from a Class C3 dwelling to a sui generis use as commercial leisure accommodation falling outside Class C3. The notice required the cessation of such use. The notice was subsequently upheld by a planning inspector, who found that the use of the property resulting from the holiday letting business was quite different in character from that of a private family dwelling-house, given the pattern of arrivals and departures and the associated traffic movements, the unlikelihood of occupation by family or household groups, the numbers of people in the visiting groups, the likely frequency of party-type activities, and the potential lack of consideration for neighbours. The appellant’s challenge to that decision, under section 289 of the Town and Country Planning Act 1990, was dismissed in the High Court: see [2012] EWHC 1092 (Admin).
The appellant appealed. She contended, relying on the decision of the Court of Appeal in Moore v Secretary of State for the Environment [1998] 2 PLR 65, that where there was a permitted use as a “dwelling” or “dwelling-house”, that use lawfully included not only occupation by an individual or family as a permanent home but also the use of the dwelling for holiday or temporary occupation, whether or not that occupation resulted from a commercial letting. She further submitted that if the current use of the property was a breach of planning control, then its description in the notice as “commercial leisure accommodation” was too wide since not all forms of leisure accommodation amounted to a change of use.
Planning control – Change of use – Enforcement notice alleging change of use of property from dwelling to commercial leisure accommodation – Notice upheld by planning inspector – Whether permitted use as dwelling including use as holiday accommodation – Whether notice too wide in its terms – Appeal dismissed.
The appellant owned a property that had formerly been converted into, and occupied as, an eight-bedroom family dwelling pursuant to a planning permission granted in 1999. From 2008 onwards, the appellant, through her company, used the property for short-term holiday lets. The house was advertised as accommodating groups of up to 18 people, with two more on a sofa bed, and was generally let for short periods of three, four or seven nights.The local planning authority issued an enforcement notice alleging a breach of planning control by a change of use, without planning permission, from a Class C3 dwelling to a sui generis use as commercial leisure accommodation falling outside Class C3. The notice required the cessation of such use. The notice was subsequently upheld by a planning inspector, who found that the use of the property resulting from the holiday letting business was quite different in character from that of a private family dwelling-house, given the pattern of arrivals and departures and the associated traffic movements, the unlikelihood of occupation by family or household groups, the numbers of people in the visiting groups, the likely frequency of party-type activities, and the potential lack of consideration for neighbours. The appellant’s challenge to that decision, under section 289 of the Town and Country Planning Act 1990, was dismissed in the High Court: see [2012] EWHC 1092 (Admin).The appellant appealed. She contended, relying on the decision of the Court of Appeal in Moore v Secretary of State for the Environment [1998] 2 PLR 65, that where there was a permitted use as a “dwelling” or “dwelling-house”, that use lawfully included not only occupation by an individual or family as a permanent home but also the use of the dwelling for holiday or temporary occupation, whether or not that occupation resulted from a commercial letting. She further submitted that if the current use of the property was a breach of planning control, then its description in the notice as “commercial leisure accommodation” was too wide since not all forms of leisure accommodation amounted to a change of use.
Held: The appeal was dismissed.(1) Neither of the two possible extreme propositions, namely that using a dwelling-house for commercial holiday lettings would always amount to a material change of use, or that such use could never amount to a change of use, was correct. Whether the use of a dwelling-house for commercial letting as holiday accommodation amounted to a material change of use was a question of fact and degree in each case, and would depend on the particular characteristics of the use in question: Blackpool Borough Council v Secretary of State for the Environment (1980) 40 P&CR 104 applied; Moore considered; Gravesham Borough Council v Secretary of State for the Environment (1982) 47 P&CR 142 distinguished. The inspector had proceeded correctly by recognising that a dwelling-house could lawfully be used for some degree of holiday letting without there being a material change of use and then asking whether there was anything about the particular characteristics of the holiday lettings in the case before him that amounted to such a change. He had compared the character of the current use with that of the previous lawful use. Having carefully examined the characteristics of the lettings, he had been entitled to conclude that, as a matter of fact and degree, they constituted a material change of use from the permitted use as a dwelling-house. The particular use of the property for holiday lettings was very far removed from the permitted use as a dwelling-house and a material change of use had occurred.(2) Even if the description of the breach of planning control was too wide, it was neither misconceived nor unintelligible. The description of the current use as “commercial leisure accommodation” covered the particular use to which the property was being put, since holiday accommodation was a form of leisure accommodation. Although “leisure accommodation” might encompass a wide range of different forms of occupation of the property, some of which might not constitute a material change of use, and not all forms of commercial holiday letting would amount to a material change of use of a dwelling-house, the inspector had not erred in law in upholding the notice in the terms in which it was issued. Before the inspector, the parties had made no attempt to define when a use for commercial holiday letting might amount to a material change of use of the property, or even to suggest any criteria that might be relevant for the purpose of drafting such a definition. The inspector had not been presented with any viable alternative that would have secured the cessation of the breach of planning control that he found to have occurred. His primary duty was to consider the proposals that had been put before him, and he was not under any duty to search around for solutions; there was no “obvious alternative” that the inspector should have considered: Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744 and Taylor & Sons (Farms) Ltd v Secretary of State [2001] EWCA Civ 1254 applied.
This was an appeal by the appellant, Sheila Moore, from a decision of Ms Frances Patterson QC, sitting as a deputy High Court judge, dismissing an appeal, under section 289 of the Town and Country Planning Act 1990, from the decision of a planning inspector appointed by the first respondent, the secretary of state for communities and local government, upholding an enforcement notice issued by the second respondents, Suffolk Coastal District Council, alleging a change of use of a property from a dwelling to commercial leisure accommodation.
Alun Alesbury (instructed by Gotelee Solicitors, of Ipswich) appeared for the appellant; Gwion Lewis (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents, Suffolk Coastal District Council, did not appear and were not represented.
Sally Dobson, barrister
