In London, special controls restrict the use of residential properties as temporary sleeping accommodation, which is defined as sleeping accommodation that is occupied by the same person for less than 90 consecutive nights. Section 25 of the Greater London Council (General Powers) 1973 Act (the 1973 Act) provides that the use of residential premises as temporary sleeping accommodation in Greater London amounts to a material change of use.
In Fairstate Ltd v First Secretary of State [2005] EWCA Civ 238; [2005] PLSCS 61, the Court of Appeal considered the effect of section 25 in respect of an appeal against an enforcement notice. The notice alleged a material change in the use of residential premises from permanent residential accommodation to use for short-term letting purposes as temporary sleeping accommodation within the meaning of the 1973 Act.
The subject flat had been unlawfully used as temporary sleeping accommodation for more than 10 years prior to January 1999. From February to July of that year, a tenant had taken a series of back-to-back tenancies, which lasted for 155 days, therefore exceeding the 90-day period stipulated in section 25. The use subsequently reverted to that of temporary sleeping accommodation.
Four years later, the local council issued an enforcement notice in respect of that use. The appellant appealed to the First Secretary of State. His inspector held that the back-to-back tenancies had given rise to a break in the claimed period of letting for less than 90 days and that the resumption of short-term lettings amounted to a fresh change of use for which planning permission had not been obtained. It followed that the appellant could not show that there had been a 10-year period since the breach of planning control, which would prevent enforcement action from being taken.
The appellant contended that the 10-year time limit on enforcement action had already accrued following the expiry of the first 10-year period and that this could be lost only by abandonment or material change of use. The court held that the first 10 years of use as temporary sleeping accommodation had become lawful and, therefore, the tenancies for some five months did not amount to a material change of use. However, section 25 of the 1973 Act provided an exception to the general rule, and the interruption of the sequence of short-term occupation brought section 25 into play. The recommencement of use as temporary sleeping accommodation was deemed to constitute a material change of use, operable when the actual use as residential accommodation changed to use as temporary sleeping accommodation. The issue was not whether the intervening tenancy involved a material change from the previous lawful use. Thus, the local planning authority were entitled to issue the enforcement notice.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
In London, special controls restrict the use of residential properties as temporary sleeping accommodation, which is defined as sleeping accommodation that is occupied by the same person for less than 90 consecutive nights. Section 25 of the Greater London Council (General Powers) 1973 Act (the 1973 Act) provides that the use of residential premises as temporary sleeping accommodation in Greater London amounts to a material change of use.
In Fairstate Ltd v First Secretary of State [2005] EWCA Civ 238; [2005] PLSCS 61, the Court of Appeal considered the effect of section 25 in respect of an appeal against an enforcement notice. The notice alleged a material change in the use of residential premises from permanent residential accommodation to use for short-term letting purposes as temporary sleeping accommodation within the meaning of the 1973 Act.
The subject flat had been unlawfully used as temporary sleeping accommodation for more than 10 years prior to January 1999. From February to July of that year, a tenant had taken a series of back-to-back tenancies, which lasted for 155 days, therefore exceeding the 90-day period stipulated in section 25. The use subsequently reverted to that of temporary sleeping accommodation.
Four years later, the local council issued an enforcement notice in respect of that use. The appellant appealed to the First Secretary of State. His inspector held that the back-to-back tenancies had given rise to a break in the claimed period of letting for less than 90 days and that the resumption of short-term lettings amounted to a fresh change of use for which planning permission had not been obtained. It followed that the appellant could not show that there had been a 10-year period since the breach of planning control, which would prevent enforcement action from being taken.
The appellant contended that the 10-year time limit on enforcement action had already accrued following the expiry of the first 10-year period and that this could be lost only by abandonment or material change of use. The court held that the first 10 years of use as temporary sleeping accommodation had become lawful and, therefore, the tenancies for some five months did not amount to a material change of use. However, section 25 of the 1973 Act provided an exception to the general rule, and the interruption of the sequence of short-term occupation brought section 25 into play. The recommencement of use as temporary sleeping accommodation was deemed to constitute a material change of use, operable when the actual use as residential accommodation changed to use as temporary sleeping accommodation. The issue was not whether the intervening tenancy involved a material change from the previous lawful use. Thus, the local planning authority were entitled to issue the enforcement notice.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
