The High Court in Benson v The Secretary of State for Communities & Local Government & Anor [2018] EWHC 2354 (Admin) has recently re-affirmed the relevance of gaps of inactivity or alternative uses to claims for immunity from planning enforcement. Specifically, the case highlighted some potential pitfalls surrounding the creation of a second separate dwelling from a single dwellinghouse.
Legislation
The creation of a two or more separate dwellings from a single dwellinghouse constitutes a material change of use requiring express planning permission pursuant to section 55(3(a) of the Town and Country Planning Act 1990 (“the 1990 Act”).
If the above change of use occurs without planning permission then it will be immune from enforcement, provided such change of use has occurred for a continuous period of four (4) years pursuant to s171B(2) of the 1990 Act.
The facts
In 2007, the owners replaced storage at the side of their house with a single-storey extension consisting of, and in accordance with the plans deposited at the time, a guest bedroom with en suite bath and a play area. At some period or periods after this date, the extension was rented out as a self-contained flat.
The issue of the use of the extension as a self-contained flat arose in 2016 and, in the first instance, the owners applied for retrospective planning permission. Such application was refused by the council, who subsequently issued an enforcement notice in November 2016 requiring the ‘cessation of the use of the premises as two self-contained residential units’. The owners appealed, asserting immunity from planning enforcement.
Following a public inquiry, the appointed inspector dismissed the appeal principally on the grounds that there had not been established a continuous four (4) year period of use of the extension as a separate dwelling. Specifically, he noted:
“the appellant acknowledged that there were unrecorded periods of between a week and two months when relatives or other guests were occupying the annex and sharing the facilities of the main dwelling. They were not occupying the annex as a self-contained unit of accommodation.
A gap of two months between lettings during which time 113 Hillside Avenue reverted to a single dwelling house, such that the Council could not have taken enforcement action, would be significant. Any such gap, as opposed to one for example when repairs were being carried out or a new tenant was sought could not be considered de minimis and would constitute a break in the breach of planning control, the result being that a resumption of letting the annex as a separate unit would constitute a new breach of planning control and the 4 year period would recommence.” [emphasis added]
The decision
The High Court dismissed the claim, affirming that the inspector correctly interpreted the law and that there was no irrationality in his assessment of the facts which was a planning judgement.
Specifically, the Court noted the decision of Newman J in Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions [2011] EWHC 128 (Admin) where he stated:
“The rationale of the immunity is that throughout the relevant period of unlawful use the Local Planning Authority, although having the opportunity to take enforcement proceedings, has failed to take any action, and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. In my judgment, it must follow that if at any time during the relevant period the Local Authority would not have been able to take enforcement proceedings in relation in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards the rolling period of years which gives rise to the immunity.
Since the burden is upon the recipient of a notice to establish a defence, that burden involves establishing that at any time during the relevant period enforcement action could have been taken. Each case will depend upon its own facts. Where a material change of use without permission is alleged, issues of intensity and character of the use will be relevant, as will occasions or intervals of inactivity. According to the particular use under scrutiny, short periods of inactivity may be regarded as part of a continuing use; longer periods may not be so regarded".
Lesson: When considering whether the immunity period from planning enforcement has arisen on a matter, it is important to consider whether there has been any periods during such time of alternative planning use (e.g. reversion to the existing lawful use) and/or inactivity ordinarily inconsistent with the claimed unlawful use (e.g. repairs consistent with the claimed unlawful use will unlikely interrupt the immunity period).
This assessment is fact dependent and a matter of planning judgement, but any long periods of such alternative use or inactivity is likely to be found as an interruption to the immunity period.
