Enforcement notices — Immunity — Inspector overturning enforcement notices and granting permission for development complained of in second notice — Judge overturning inspector’s decision — Whether inspector erring in approach to 10-year period — Whether decision on planning permission flawed — Sections 171B(3) and 174(2)(a) and (d) of Town and Country Planning Act 1990 — Class E of Part 1 of Schedule 2 to Town and Country Planning (General Permitted Development) Order 1995 — Appeal dismissed
Over a period of 20 years, a piece of open green-belt land near a farmhouse was used from time to time as an airfield, although the degree of activity fluctuated. Subsequently, the respondent council served two enforcement notices on the second appellant, H. The first notice alleged an unlawful change of use from domestic and agricultural purposes to use for domestic purposes and as an airfield. The second notice complained of the construction of an aircraft hangar.
An inspector allowed H’s appeal against both notices. His decision on the first was based upon the ground in section 174(2)(d) of the Town and Country Planning Act 1990, namely that no enforcement action could be taken in respect of the airfield use. He found that: (i) a material change of use to airfield use had taken place more than 10 years previously; (ii) there was no clear evidence of that use subsequently having been abandoned; and (iii) accordingly, H was immune from enforcement action by virtue of section 171B(3) of the Act. In respect of the second notice, the inspector concluded that section 174(2)(a) applied, and that planning permission ought to be granted for the hangar.
The council’s appeals against the inspector’s decision, under sections 288 and 289, were allowed on the ground that he had taken the wrong approach to both notices. In relation to the first, the judge held that the inspector had failed to consider whether the airfield use had been, throughout the whole of the relevant period, of such a nature that enforcement action could have been taken in respect of it.
Both H and the Secretary of State appealed. They contended, inter alia, that an unlawful change of use did not have to be continuous for the purposes of section 171B(3), so that once there had been a material change of use without planning permission, that use would become immune from enforcement action after 10 years, even if it lay dormant for certain periods.
Held: The appeal was dismissed.
1. The inspector had erred in his approach to the first enforcement notice in considering whether there had been a material change of use to a commercial use, and then considering whether the council had satisfied him that that use had been abandoned. It was for the landowner to show that the use had continued unabated, and the inspector had not been entitled to apply a presumption, in the absence of clear evidence, that it had. Such an approach was relevant only where a landowner sought to resume an activity that had undoubtedly been lawful at an earlier date without obtaining further planning permission: Panton v Secretary of State for the Environment, Transport and the Regions [1999] 1 PLR 92 distinguished. The rationale of immunity from enforcement was that if the unlawful use continued throughout the relevant period without the planning authority taking the opportunity to enforce against it, they lost the chance to do so upon expiry of the time limit. It followed that the judge had been correct in holding that the inspector should have addressed the question of whether enforcement action could have been taken throughout a continuous 10-year period. If, during the relevant period, there had been any time during which the council could not have taken enforcement proceedings, that time could not count towards the 10-year period that gave rise to immunity. The inspector should also have addressed the question of whether there had been a material change in the use of the land within the 10 years prior to the issue of the enforcement notice.
2. In relation to the second notice, the inspector should have asked himself whether the landowner had shown that there was a realistic prospect of a hangar of a particular size, within the limits of the 1995 Order, being required for a purpose incidental to the enjoyment of the dwellinghouse as such. If so, he should have gone on to ask whether there was a realistic prospect of such a hangar actually being erected if the existing one were demolished, and he should then have explained the evidence or reasoning upon which he based those findings. He had failed to do so, and the judge had been right to overturn his decision.
Timothy Corner QC (instructed by the Treasury Solicitor) appeared for the first appellant; Stephen Hockman QC and Kevin Leigh (instructed by Jennings Son & Ash) appeared for the second appellant; John Hobson QC and Paul Brown (instructed by Sharpe Pritchard) appeared for the respondents.
Sally Dobson, barrister
