Material change of use — Breach of planning control — Time-limits — Conversion of outbuildings into 10 self-contained residential dwellings for holiday lettings — Section 171B(2) and (3) of the Town and Country Planning Act 1990 — Whether four-year time-limit applied
The appellant and N acquired a large Edwardian
country house and carried out works of restoration and conversion of the house
and its outbuildings. In breach of planning control they converted parts of the
outbuildings into 10 single self-contained units of residential accommodation
for the purposes of holiday lettings. Nine of the units were in use by May
1991, the material date for the purposes of the four-year time-limit in section
171B(2) of the Town and Country Planning Act 1990. In May 1995 the second
respondent planning authority issued an enforcement notice which alleged a
breach of planning control consisting of a change of use of part of the
property from residential to mixed use of residential and as 10 units of
holiday accommodation. The Secretary of State for the Environment, who accepted
the findings and recommendations of his inspector, dismissed the appellant’s
appeal on the ground that the use of the house and outbuildings constituted one
planning unit and did not involve the creation of single dwellinghouses;
accordingly the time-limit of 10 years, in section 171B(3), applied and not the
time-limit of four years in subsection (2). The appellant appealed against the
decision of the court below dismissing his appeal against the Secretary of
State’s decision.
McCullough J’s approach to the meaning of
‘dwellinghouse’ in Gravesham Borough Council v Secretary of State for
the Environment (1982) 47 P&CR 142 was entirely correct. There was no
requirement that before a building can be described as a ‘dwellinghouse’ it
must be occupied as the permanent home of one or more persons or the like. Nor
do 10 self-contained units of residential accommodation, which would otherwise
be properly described as 10 single dwellinghouses cease to be used as such
because they are managed as a whole for the commercial purpose of holiday or
other temporary letting. The Secretary of State applied an incorrect test and
had he applied the correct test, he could only have properly concluded that the
10 units were being used as 10 single dwellinghouses within section 171B(2),
which applied the four-year time-limit:
see p71A.
Gravesham Borough Council v Secretary of State for the Environment (1982) 47 P&CR
142; [1983] JPL 307
Van Dyck v Secretary
of State for the Environment (1992) 91 LGR 459; 66 P&CR 61; [1993] 1
EGLR 186; [1993] 21 EG 112; [1993] 1 PLR 124; [1993] JPL 565
Appeal under section 289
This was an appeal brought by Terence Arthur James
Moore against the dismissal by Judge Rich QC, sitting as a judge of the High
Court, of his appeal against the decision of the Secretary of State for the
Environment, who upheld an enforcement notice for breach of planning control
issued by New Forest District Council.
& Mayo, of Yeovil) appeared for the appellant, Terence Arthur James Moore.
Solicitor) represented the first respondent, the Secretary of State for the
Environment.
Council, did not appear and were not represented.
NOURSE LJ: The
question on this appeal is whether the conversion, in breach of planning
control, of parts of the outbuildings of a country house in the New Forest into
10 self-contained units of residential accommodation constituted a change of
their use to use as 10 single dwellinghouses within section 171B(2) of the Town
and Country Planning Act 1990 as amended (four-year time-limit on enforcement
action).
The appellant, Terence Arthur James Moore, is a
joint owner of Ladycross Lodge, Beaulieu, Brockenhurst, Hampshire, a large
Edwardian house set in extensive grounds. The appellant and his co-owner, Mr PW
Naylor, acquired the property in November 1985 and embarked on a programme of
restoring and converting the house and its outbuildings. The conversion
included the creation of 10 self-contained units of residential accommodation
in parts of the outbuildings. It was carried out without planning permission
and therefore in breach of planning control. Nine of the 10 units were already
in their current use before May 26 1991, the material date for the purposes of
section 171B(2).
On May 26 1995 New Forest District Council issued
two enforcement notices, only one of which (the first notice) is relevant to
this appeal. The breach of planning control alleged in the first notice was,
without planning permission, changing the use of the material part of the
property ‘from residential to a mixed use of residential and as ten units of holiday
accommodation’. The appellant appealed against both notices and on October 31
and November 1 1995 an inspector appointed by the Secretary of State held a
public local inquiry at Lyndhurst. Having considered the inspector’s report
dated November 28 1995, the Secretary of State, in a decision letter dated
January 12 1996, directed the time for compliance with the first notice to be
extended from six to 12 months, dismissed the
permission on the appellant’s deemed application. The appeal against the other
enforcement notice was allowed and the notice quashed.
The appellant appealed with leave to the High
Court under section 289 of the Act. His appeal came before Judge Rich QC,
sitting as a judge of the Queen’s Bench Division, on October 25 1996, when it
was dismissed. With the leave of Pill LJ, the appellant brings a further appeal
to this court.
The material facts found by the inspector are as
follows. The units are all self-contained, with no apparent connection between
them, and each is supplied with the facilities necessary for daily life,
including living, sleeping and eating space, kitchens, bathrooms and wcs. Each unit has a small area of open
air amenity space defined by hedges or fences, usually at the front. There is a
communal car park for the 10 units, apart from which there are no communal
areas. Council tax is charged on the property by four separate assessments, one
of which covers the main house and the 10 units. The units are available to the
public on short lets, including weekend and mid-week breaks, with the longest
letting being for three or four months. They are managed as one entity, the
income being deposited in one account. Cleaning is provided at changeovers and
a maid can be employed at an extra charge for cleaning on an hourly basis.
Linen, including towels, is provided. Breakfast hampers are provided for guests
at an extra charge, but other than that no meals are provided. None of the
units is used for staff accommodation.
The inspector considered the appeal against the
first notice under grounds (b), (c) and (d) in section 174(2) of the Act. Of
these, the relevant ground is (d), which allows an appeal to be brought against
an enforcement notice on the ground:
that, at the date when the notice was issued, no
enforcement action could be taken in respect of any breach of planning control
which may be constituted by those matters.
Inevitably, in considering grounds (b) and (c),
the inspector expressed views which were material to ground (d) as well.
The passages in the inspector’s conclusions to
which we have been particularly referred by counsel are the following:
102. So far as the two enforcement notices are
concerned, it seems to me that it is first necessary to establish the nature of
the activity which is alleged to be in breach of planning control and the
planning unit or planning units within which it has been taking place …
NOTICE NO 1
The Appeals on Grounds (b) and (c)
103. Although the appellants have claimed that
each of the holiday units within the outbuildings attached to Ladycross Lodge
is an independent single dwellinghouse in its own right, the facts do not
support that contention. Since they acquired the house and estate in 1985, the
appellants began by renovating and improving the accommodation for the purpose
of letting it as holiday accommodation and as each unit was ready it was let
for
group of holiday cottages in the tourist area of the New Forest …
104. Thus, since 1985 there has been a
progressive process of renovating and adapting the space within the
outbuildings attached to the north side of the main house for the purpose of
letting it for self-contained, short term holiday accommodation … As a matter
of fact and degree, I conclude that the use of the outbuildings adjoining the
main house for holiday accommodation amounts to a materially different use to
any preceding lawful use of them …
106. The ‘cottages’, apartments or whatever
description is applied to them certainly have the physical attributes of
self-contained dwellings now. However, they are not used in the normal sense as
independent residential units. Their use for holiday accommodation is, in my
opinion, materially different to a use of premises by a household as the long
term home of the person or persons comprising that household. Put in simple
terms, no one lives in these cottages and has not done so since 1985. This
requires no definition of legal principle; it is a common sense conclusion
derived from the facts of this case … my conclusion [is] that the ten holiday
‘cottages’ comprise one planning unit, together with the main house, and that
they are not individual or single dwellinghouses …
The Appeal on Ground (d)
110. Concerning the appeal on ground (d) against
Notice No 1, the material change of use which has occurred is not, as I have
concluded above, a use of separate parts of these outbuildings as ten single
dwellinghouses, but a use of the whole as one unit for the purposes of holiday
accommodation comprising ten apartments…
In his decision letter the Secretary of State
accepted all the inspector’s findings of fact. In dismissing the appeal against
the first notice on grounds (b) and (c), he agreed that, on the evidence
presented, the present use of the outbuildings ‘is, as an entity and not
individual single dwellinghouses, as holiday accommodation’. In regard to the
appeal on ground (d), the Secretary of State accepted the conclusions in para
110 of the inspector’s report and agreed that the breach of planning control
alleged in the first notice was one to which subsection (3), not subsection (2),
of section 171B applied. Accordingly, the appeal on ground (d) also failed.
The following provisions of the Act are material
to the appellant’s appeal under section 289. Section 55(1) makes general
provision for the meaning of ‘development’, including the making of any
material change in the use of any building or other land. So far as material,
section 55(3) provides:
For the avoidance of doubt it is hereby declared
that for the purposes of this section —
(a) the
use as two or more separate dwellinghouses of any building previously used as a
single dwellinghouse involves a material change in the use of the building and
of each part of it which is so used; …
Section 171B imposes time-limits on the periods
during which enforcement action in respect of breaches of planning control may
be taken. Subsection (1) is not material. Subsection (2) provides:
Where there has been a breach of planning control
consisting in the change of use of any building to use as a single
dwellinghouse, no enforcement action may be taken after the end of the period
of four years beginning with the date of the breach.
Subsection (3) provides that in the case of any
other breach of planning control, no enforcement action may be taken after 10
years. Finally, section 336(1) includes the following definition:
‘Building’ includes any structure or erection,
and any part of a building, as so defined …
The essence of the appellant’s case, as advanced
by Mr Alun Alesbury on his behalf, is that the Secretary of State erred in law
in accepting the inspector’s conclusion (para 110) that the use to which a
change had been made was not ‘a use of separate parts of these outbuildings as
ten single dwellinghouses, but a use of the whole as one unit for the purposes
of holiday accommodation comprising ten apartments’. Mr Alesbury makes two
criticisms of the Secretary of State’s decision: first, that it was wrongly
based on the concept of the planning unit; and, second, that it was based on an
incorrect view of the meaning of ‘dwellinghouse’.
The foundation for the first criticism is the
inspector’s view (para 102) that it was first necessary to establish the
planning unit or units within which the activity alleged to have been in breach
of planning control had been taking place and his conclusion (para 106) ‘that
the ten holiday ‘cottages’ comprise one planning unit, together with the main
house, and that they are not individual or single dwellinghouses’. It is clear
from the judgment of Simon Brown LJ (with whom Dillon and Farquharson LJJ
agreed) in Van Dyck v Secretary of State for the Environment
[1993] 1 PLR 124 that the concept of the planning unit has no part to play in a
case where there has been a change from use as a single dwellinghouse to use as
two or more separate dwellinghouses within section 55(3)(a). At p133D, Simon
Brown LJ said:
As stated, the purpose of the concept — the only
point in deciding upon the appropriate planning unit — is to decide whether or
not there has been a material change of use. Here, undoubtedly, there has been:
section 55(3)(a) so declares. There is, accordingly, no possible need to invoke
the doctrine of the planning unit to decide the question. Here, moreover, it
was the very act of creating two separate units of occupation out of a single
pre-existing unit which constituted the making of the material change of use.
How inappropriate, therefore, that one should seek assistance from a doctrine
substantially founded on units of occupation to illuminate the nature of the
breach of planning control in question or to determine the appropriate target
for enforcement.
The actual decision in that case was that the
predecessor of what is now section 171B(2) of the Act, when construed in the
context of section 55(3)(a) and the definition of ‘building’ in section 336(1),
is capable of applying to a subdivision of one single dwellinghouse into two or
more separate
dwellinghouses after the four-year period has expired. I agree with Mr Alesbury
that both the observations of Simon Brown LJ and the actual decision are
directly applicable to this case. However, in Van Dyck it was not
suggested, it could not have been suggested, that the units into which the
dwellinghouses had been subdivided were not themselves single dwellinghouses
for the purposes of what is now section 171B(2). It is the Secretary of State’s
decision of that question to which Mr Alesbury’s second criticism is directed.
The question whether the 10 self-contained units
of residential accommodation are being used as single dwellinghouses was a
question of fact and degree to be determined by the Secretary of State on the
basis of the facts found by the inspector and accepted by him. A question of
fact and degree, although it is a question of fact, involves the application of
a legal test. If the Secretary of State applies the correct test, the court, on
an appeal under section 289, can only interfere with his decision if the facts
found are incapable of supporting it. If, on the other hand, he applies an
incorrect test, then the court can interfere and itself apply the correct test
to the facts found. Mr Alesbury submits that here the Secretary of State has
applied an incorrect test.
The particular conclusion at which Mr Alesbury’s
attack has been aimed is in the first part of para 106, where the inspector,
while accepting that the units certainly have the physical attributes of
self-contained dwellings, nevertheless opined that they are not used in the
normal sense as independent residential units because their use for holiday
accommodation is ‘materially different to a use of premises by a household as
the long term home of the person or persons comprising that household’ and
because ‘no one lives in these cottages and has not done so since 1985’. Mr
Alesbury submits that the inspector erred in thinking that such considerations
were relevant, an error compounded by his view that no definition of legal
principle was required.
In support of his submission that the inspector,
and through him the Secretary of State, adopted an incorrect meaning of
‘dwellinghouse’, Mr Alesbury has relied on the judgment of McCullough J in Gravesham
Borough Council v Secretary of State for the Environment (1982) 47
P&CR 142. In that case it was held that the Secretary of State had been
entitled to find that a building described for planning purposes as a ‘weekend
and holiday chalet’ was a dwellinghouse within Class I of Schedule 1 to the
Town and Country Planning General Development Order 1977. McCullough J’s
judgment contains a valuable discussion of the circumstances in which a
building might or might not be regarded as being a dwellinghouse. He concluded
that the distinctive characteristic of a dwellinghouse is its ability to afford
to those who use it the facilities required for day to day private domestic
existence. In coming to that conclusion, he firmly rejected the notion that a
building which had that characteristic ceased to be a dwellinghouse because it
was occupied only for a part or parts of the year or at infrequent or irregular
intervals or by a series of different persons.
In my judgment, McCullough J’s approach to the
meaning of ‘dwellinghouse’ was entirely correct. Although we were not referred
to any of the many other decisions on the meaning of that word in other areas
of the law, I am confident that an examination of them would reveal no
requirement that before a building can be so described it must be occupied as
the permanent home of one or more persons or the like. Nor do 10 self-contained
units of residential accommodation which would otherwise be properly described
as 10 single dwellinghouses cease to be used as such because they are managed
as a whole for the commercial purpose of holiday or other temporary lettings.
Accordingly, I am satisfied that the Secretary of State applied an incorrect
test in this case and that, if he had applied the correct test, he could only
have properly concluded that the 10 units are being used as 10 single
dwellinghouses within section 171B(2) of the Act.
I would therefore allow this appeal and direct
that the Secretary of State’s decision be remitted to him for redetermination
in accordance with the opinion of the court.
PILL LJ: I agree.
THORPE LJ: I also
agree.
The appeal was allowed.
