Planning control – Noise – Place of worship – Local authority issuing enforcement notice for unauthorised change of use – Planning inspector finding immunity from enforcement after ten years use – Whether legislation requiring continuous specific use for requisite period – Whether unlawful changes of use within same class conferring immunity – Application dismissed
The claimant was the owner and occupier of a flat, adjoining a property owned by P who had granted a leasehold interest in that property to R. The claimant subsequently complained about the late night noise resulting from R’s use of the property as a place of worship which fell within class D1 of the Town and Country Planning (Use Classes) Order 1987.
The local authority issued an enforcement notice against P under section 172 of the Town and Country Planning Act 1990 for breach of planning control. The local authority acknowledged that planning permission had been granted more than ten years before for use as a place of worship but contended that, as certain conditions precedent had not been satisfied, R’s use of the property for that purpose was unlawful.
P appealed, inter alia, under section 174(2)(d) of the 1990 Act, on the basis that the time for taking enforcement action had expired. In so doing, he relied on section 171B(3) of the 1990 Act which provided that no enforcement action could be taken for breach of planning control after the end of ten years beginning with the date of the breach.
A planning inspector appointed by the respondent secretary of state accepted P’s argument that, from 1993 onwards there had been a number of different uses of the property, all of which fell within class D1 of the 1987 Order. The inspector rejected the local authority’s argument that each new use of the property constituted a fresh breach of planning control which reset the clock for the purpose of enforcement. There had been no material change of use requiring planning permission in the 10-year period prior to the issue of the enforcement notice. P was entitled to immunity under section 171B(3) and his appeal was allowed.
The claimant applied for judicial review of that decision. He argued that the inspector had misinterpreted section 55(2)(f) of the 1990 Act and art. 3(1) of the 1987 Order since the provision that a change of use from one use within a use class to another use within the same class “shall not be taken for the purposes of the [1990] Act to involve development of the land” applied only where the existing use was lawful.
Held: The application was dismissed.
Unlawful changes of use within same use class were capable of conferring immunity. It was clear that neither the structure nor the language of the 1990 Act permitted the interpolation of the word “lawfully” into section 55(2)(f); nor was it permissible to construe that provision as meaning that a single purpose in any use class had to be undertaken before immunity was conferred on a use within that class.
Section 55(2)(f) did not contain the word “lawfully”. There were some instances in which the word “lawfully” was implicit in a statute. However, particularly in an enforcement context, it would be wrong to interpolate the word lawfully to effect such a different change to the provision.
The concept of development without planning permission was crucial to the operation of the enforcement provisions. A sequence of changes within class D1 was not a material change of use which had somehow received statutory sanction. It would be wrong for an event which did not constitute development to recommence the running of a ten year limitation period. Local authorities knew that uses might spring to life without amounting to a material change and they had to be aware that changes of use were possible within each class for purposes of the 1987 Order.
A local authority would be able to enforce against a sequence of uses, all within a particular use class, none lasting ten years so as to confer immunity, but before the expiry of ten years of unauthorised. The enforcement notice could properly strike at the existing use where there was no ten year use within class D1.
In the circumstances of the present case, the inspector had been entitled to conclude that, after ten years of use within class D1, the local authority could not take enforcement action.
John Litton QC and Charles Banner (instructed by Bircham Dyson Bell LLP) appeared for the claimants; James Strachan and Jonathan Auburn (instructed by the Treasury Solicitor) appeared for the respondent.
Eileen O’Grady, barrister
