Green belt — Change of use – Enforcement – Appellant changing use of farm buildings to use for vehicle repairs – Local authority issuing enforcement notice for breach of planning control – Planning inspector dismissing appeal against notice – Whether inspector properly imposing 10-year limitation period for enforcement action against unauthorised use where building completed more than four years but less than 10 years prior to enforcement action — Appeal dismissed
The appellant had carried out a development on farmland in the green belt for mixed commercial purposes, parts of which had the benefit of planning permission or a certificate of lawful use. However, he had erected buildings on the site without planning permission. The local planning authority (the interested party) issued an enforcement notice for breach of planning control by the unauthorised erection of and extension to existing buildings and the unauthorised change of use from storage to use as a vehicle repair garage.
The appellant challenged the notice. An inspector appointed by the respondent secretary of state found that some uses permitted on the site as a whole were not compatible with green- belt policies. However, the use of the buildings did not accord with any permitted lawful use and it had not been carried in for a period of 10 years, although it had been carried on for a period of more than four years. The use was therefore unlawful.
The appellant appealed against that decision, contending that the change of use for which the building was erected was for carrying out vehicle repair activities. He contended that those activities were ancillary to the building operations and it was correct, as a matter of law, that they should carry not the 10-year limitation on enforcement under section 171B(3) of the Town and Country Planning Act 1990, but the four-year limitation period under section 171B(1).
The appellant argued that, since the use was to be regarded as a lawful use when it coud not be enforced against, because it had become immune through lapse of time, it had to be approached in the same way as a planning permission that is the advantages that were gained from having a planning permission should apply equally to the use that could lawfully be carried out. He relied on section 191 of the 1990 Act, which enabled a certificate of lawfulness of existing use or development to be obtained.
Held: The appeal was dismissed.
Section 191 could not be used to indicate what the true construction of section 171B should be. Section 191 merely dealt with the effect of a certificate of lawful use and when it could be granted. It did not indicate whether or not a particular use was lawful as far as enforcement was concerned, and if there was in existence an enforcement notice in respect of any use or f any building, it would preclude the grant of a certificate of lawful use covering that use or building: section 191(2)(b). Further, section 336 of the Act, which defined planning permission, did not include section 191. Thus, it was by definition in the Act itself not regarded as a planning permission: Wilson v West Sussex County Council [1963] 2 QB 764 considered.
It was a misuse of language to regard the use for which the building was intended as a use ancillary to the construction of the building; each required planning permission. It was clear from section 171B that a distinction had to be drawn between change of use and operational development that was consistent with the approach in the 1990 Act. If an individual chose to erect a building without planning permission that was intended to be used for a purpose that had not received permission, he inevitably ran the risk of having to remove the building if enforcement action were taken against that use. He could not be placed in the same position as though he had obtained planning permission; he had chosen deliberately to flout the law whether or not he had intended to deceive the council. There was no good reason why he should reap any benefit from that: Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26; [2010] 05 EG 113 (CS) considered.
In the instant case, the buildings in dispute could be put to a use ancillary to any lawful use of the land. Equally, the view might be taken that if the council, which could have enforced against the building, had not done so in time, it might be appropriate for planning permission to be granted, subject to conditions and limiting uses, even though it might not ordinarily be appropriate to do so because of considerations such as green-belt policies. Such policies were open to permission being granted in exceptional circumstances, depending on the facts of the individual case. It would not be appropriate to attempt to remove the building, which could have been enforced against within the four-year period but had not been, by any refusal to grant a reasonable planning permission thereafter.
Paul Stinchcombe (instructed by Harold Benjamin) appeared for the claimant; Andrew Sharland (instructed by the Treasury Solicitor) appeared for the respondent; Alexander Booth (instructed by the legal department of Wycombe District Council) appeared for the interested party.
Eileen O’Grady, barrister
