In Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26; [2010] 05 EG 113 (CS) – see PP 2010/18 – the Court of Appeal left a specific issue relating to immunity from enforcement action undecided, namely where immunity has been acquired under section 171B(1) of the Town and Country Planning Act 1990 in respect of the construction of a building, is immunity automatically enjoyed in respect of the use of that building for the purpose for which it was constructed? That issue came before the High Court in R (on the application of Sumner) v Secretary of State for Communities and Local Government [2010] EWHC 372 (Admin); [2010] PLSCS 84.
On an enforcement notice appeal, an inspector had concluded that the construction of a building, for which no planning permission existed, had acquired immunity under section 171B(1) because no enforcement action had been taken within the required four-year period. However, the enforcement notice went on to allege a further breach of planning control, namely a change of use of the building to use for the carrying out of vehicle repairs. The inspector dismissed the appeal on the basis that the enforcement notice had been issued within the 10-year period referred to in section 171B(3).
In Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26; [2010] 05 EG 113 (CS) – see PP 2010/18 – the Court of Appeal left a specific issue relating to immunity from enforcement action undecided, namely where immunity has been acquired under section 171B(1) of the Town and Country Planning Act 1990 in respect of the construction of a building, is immunity automatically enjoyed in respect of the use of that building for the purpose for which it was constructed? That issue came before the High Court in R (on the application of Sumner) v Secretary of State for Communities and Local Government [2010] EWHC 372 (Admin); [2010] PLSCS 84.
On an enforcement notice appeal, an inspector had concluded that the construction of a building, for which no planning permission existed, had acquired immunity under section 171B(1) because no enforcement action had been taken within the required four-year period. However, the enforcement notice went on to allege a further breach of planning control, namely a change of use of the building to use for the carrying out of vehicle repairs. The inspector dismissed the appeal on the basis that the enforcement notice had been issued within the 10-year period referred to in section 171B(3).
The appellant appealed to the High Court contending that if it was shown that the purpose for which the building was constructed was for the carrying out of vehicle repairs, then that use was ancillary to the building operations and it should carry the four-year – and not the 10-year – limitation on enforcement.
The court was prepared to concede that the building could be put to a use ancillary to any lawful use of the land. (This did not, on the facts, include use for the carrying out of vehicle repairs.) However, the judge rejected the appellant’s argument. He said: “It seems to me that it is a misuse of the language to regard the use for which the building was intended as a use ancillary to the construction of the building. I say that because the Act draws a distinction, and this is a distinction which one sees throughout, between operational development and change of use. Each is regarded as a separate basis for a need for planning permission.”
Accordingly, the appeal was dismissed.
John Martin is a freelance writer
