In R (on the application of Waters) v Breckland District Council [2016] EWHC 951 (Admin) the High Court considered whether a planning authority determining an application for a certificate of lawfulness in relation buildings constructed without permission under Section 191 TCPA 1990 was required to consider the lawfulness of their use.
The authority granted a certificate in respect of buildings at a site used as chicken rearing and animal feed mill with various storage structures. The site had a complex planning history and the claimants had previously challenged by way of judicial review a previous certificate in respect of both uses and buildings. The operator applied again, this time only in respect of the operational development, and the Council concluded that the four year period for accrued immunity applied under Section 171B(1) TCPA 1990.
The claimant sought judicial review of that decision on the basis that the Council should have taken into account that:
- the erection of a building resulting in a material change of use of land is subject to a ten year rather than a four year time limit; and
- that buildings which are an integral part of an unauthorised use maybe liable to removal even if the buildings themselves become immune.
Laing, J dismissed the claim on the basis that Section 191 distinguishes between operational development and use (and that applicants may specify both in any application for a certificate). When dealing with an application for a certificate in respect of operational development only, planning authorities are therefore not under any duty to consider the use associated with them. She distinguished cases dealing with enforcement against unauthorised changes of use where it is recognised that an enforcement notice may require buildings to be removed where they are an integral part of the unauthorised use (Murfitt v Secretary of State for the Environmental (1980) 40P&CR254). It was relevant that the application for the certificate was for operational development only (and that the building/structures were not solely for the purpose of the alleged industrial intensified use relating to the wider lawful use of the site). The claimants’ application to require the authority to issue enforcement proceedings also failed.
Applications to regularise the status of new buildings should cover both operational development and the relevant use. Where use is an issue, the ten year immunity period will generally apply. Achieving a certificate for buildings therefore does not rule out subsequent enforcement against the use itself (subject to the application of the principle of fairness and good governance that may preclude subsequent enforcement action, noted in Welwyn Hatfield BC v Secretary of State for Communities & Local Government [2011] UKSC15).
Roy Pinnock is a partner in the planning and public law team at Dentons
