In Swale Borough Council v First Secretary of State and another 2005 EWCA Civ 1568; [2006] PLSCS 19 the Court of Appeal considered the test to establish a building’s purpose.
The second respondent had acquired land that included a barn. His predecessor in title had moved two caravans into the barn and adapted the structure to serve as his residence. The second respondent applied for a certificate of lawful use, claiming that the appellant council was barred from enforcement proceedings as four years had elapsed since the change of use had taken place.
As a matter of law, he had to demonstrate not only that the change to residential use had occurred four years prior to the application, but also that the use had been continuous throughout that time.
The Court of Appeal held that the manner in which a building is used is a question of fact, to be established by way of the test described by Newman J in Secretary of State for the Environment, Transport and the Regions v Thurrock Borough Council [2002] EWCA Civ 226; [2002] 2 PLR 43; that is, had the building had been used as a single dwelling throughout the entire four-year period, and, during that period, could the local planning authority have commenced enforcement action.
The second respondent failed the test. Although it was clear that he had always intended to reside permanently in the structure, there had been substantial periods when he had been resident elsewhere. In the original proceedings the inspector had erred in taking the second respondent’s intentions into account. Additionally, the facts that the building had been put to no other use, such as storage, and had been available for residential purposes, even if empty, were immaterial.
This case demonstrates how the test is to be applied. The essential component is that there should be sufficient evidence that the building has been consistently used for a particular purpose throughout the period in question. Substantial gaps in the continuity of the use – other than short periods for holidays, for instance – must be taken into account, as the result of such a gap will mean that the four-year period required to establish lawful use will start afresh when the use recommences.
Gill Castorina is an associate at Paul Hastings Janofsky & Walker (Europe) LLP
In Swale Borough Council v First Secretary of State and another 2005 EWCA Civ 1568; [2006] PLSCS 19 the Court of Appeal considered the test to establish a building’s purpose.
The second respondent had acquired land that included a barn. His predecessor in title had moved two caravans into the barn and adapted the structure to serve as his residence. The second respondent applied for a certificate of lawful use, claiming that the appellant council was barred from enforcement proceedings as four years had elapsed since the change of use had taken place.
As a matter of law, he had to demonstrate not only that the change to residential use had occurred four years prior to the application, but also that the use had been continuous throughout that time.
The Court of Appeal held that the manner in which a building is used is a question of fact, to be established by way of the test described by Newman J in Secretary of State for the Environment, Transport and the Regions v Thurrock Borough Council [2002] EWCA Civ 226; [2002] 2 PLR 43; that is, had the building had been used as a single dwelling throughout the entire four-year period, and, during that period, could the local planning authority have commenced enforcement action.
The second respondent failed the test. Although it was clear that he had always intended to reside permanently in the structure, there had been substantial periods when he had been resident elsewhere. In the original proceedings the inspector had erred in taking the second respondent’s intentions into account. Additionally, the facts that the building had been put to no other use, such as storage, and had been available for residential purposes, even if empty, were immaterial.
This case demonstrates how the test is to be applied. The essential component is that there should be sufficient evidence that the building has been consistently used for a particular purpose throughout the period in question. Substantial gaps in the continuity of the use – other than short periods for holidays, for instance – must be taken into account, as the result of such a gap will mean that the four-year period required to establish lawful use will start afresh when the use recommences.
Gill Castorina is an associate at Paul Hastings Janofsky & Walker (Europe) LLP
