England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 97/0017 CMS4

Royal Courts of Justice

Strand, London WC2

Thursday, 12th February 1998

B e f o r e :

LORD JUSTICE NOURSE

LORD JUSTICE PILL and

LORD JUSTICE THORPE

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TERENCE ARTHUR JAMES MOORE Appellant

-v-

(1) THE SECRETARY OF STATE FOR THE ENVIRONMENT

(2) THE NEW FOREST DISTRICT COUNCIL Respondents

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Handed Down Judgment prepared by

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MR A ALESBURY (instructed by Messrs Porter Bartlett & Mayo, Yeovil) appeared on behalf of the Appellant.

MR D ELVIN (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Thursday, 12th February 1998

LORD JUSTICE NOURSE:

The question on this appeal is whether the conversion, in breach of planning control, of parts of the outbuildings of a country house in the New Forest into ten self-contained units of residential accommodation constituted a change of their use to use as ten single dwellinghouses within section 171B(2) of the Town and Country Planning Act 1990 as amended (four year time limit on enforcement action).

The appellant, Terence Arthur James Moore, is a joint owner of Ladycross Lodge, Beaulieu, Brockenhurst in Hampshire, a large Edwardian house set in extensive grounds. The appellant and his co-owner, Mr P.W. Naylor, acquired the property in November 1985 and embarked on a programme of restoring and converting the house and its outbuildings. The conversion included the creation of ten self-contained units of residential accommodation in parts of the outbuildings. It was carried out without planning permission and therefore in breach of planning control. Nine of the ten units were already in their current use before 26th May 1991, the material date for the purposes of section 171B(2).

On 26th May 1995 the New Forest District Council issued two enforcement notices, only one of which ("the first notice") is relevant to this appeal. The breach of planning control alleged in the first notice was, without planning permission, changing the use of the material part of the property "from residential to a mixed use of residential and as ten units of holiday accommodation". The appellant appealed against both notices and on 31st October and 1st November 1995 an inspector appointed by the Secretary of State held a public local inquiry at Lyndhurst. Having considered the Inspector's report dated 28th November 1995, the Secretary of State, in a decision letter dated 12th January 1996, directed the time for compliance with the first notice to be extended from six to twelve months, dismissed the appeal against it, upheld the first notice as varied and refused to grant planning permission on the appellant's deemed application. The appeal against the other enforcement notice was allowed and the notice quashed.

The appellant appealed with leave to the High Court under section 289 of the Act. His appeal came before His Honour Judge Rich QC, sitting as a judge of the Queen's Bench Division, on 25th October 1996, when it was dismissed. With the leave of my Lord, Lord Justice Pill, the appellant brings a further appeal to this court.

The material facts found by the Inspector are as follows. The units are all self-contained, with no apparent connection between them, and each is supplied with the facilities necessary for daily life, including living, sleeping and eating space, kitchens, bathrooms and w.c.s. Each unit has a small area of open air amenity space defined by hedges or fences, usually at the front. There is a communal car park for the ten units, apart from which there are no communal areas. Council tax is charged on the property by four separate assessments, one of which covers the main house and the ten units. The units are available to the public on short lets, including weekend and mid-week breaks, with the longest letting being for three or four months. They are managed as one entity, the income being deposited in one account. Cleaning is provided at changeovers, and a maid can be employed at an extra charge for cleaning on an hourly basis. Linen, including towels, is provided. Breakfast hampers are provided for guests at an extra charge, but other than that no meals are provided. None of the units is used for staff accommodation.

The Inspector considered the appeal against the first notice under grounds (b), (c) and (d) in section 174(2) of the Act. Of these, the relevant ground is (d), which allows an appeal to be brought against an enforcement notice on the ground:

"that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters."

Inevitably, in considering grounds (b) and (c), the Inspector expressed views which were material to ground (d) as well.

The passages in the Inspector's conclusions to which we have been particularly referred by counsel are the following:

"102. So far as the two enforcement notices are concerned, it seems to me that it is first necessary to establish the nature of the activity which is alleged to be in breach of planning control and the planning unit or planning units within which it has been taking place ...

NOTICE NO 1

The Appeals on Grounds (b) and (c)

103. Although the appellants have claimed that each of the holiday units within the outbuildings attached to Ladycross Lodge is an independent single dwellinghouse in its own right, the facts do not support that contention. Since they acquired the house and estate in 1985, the appellants began by renovating and improving the accommodation for the purpose of letting it as holiday accommodation and as each unit was ready it was let for that purpose. It has been managed as an entity and marketed in that way, as a group of holiday cottages in the tourist area of the New Forest ......

104. Thus, since 1985 there has been a progressive process of renovating and adapting the space within the outbuildings attached to the north side of the main house for the purpose of letting it for self-contained, short term holiday accommodation .... As a matter of fact and degree, I conclude that the use of the outbuildings adjoining the main house for holiday accommodation amounts to a materially different use to any preceding lawful use of them ...

106. The 'cottages', apartments or whatever description is applied to them certainly have the physical attributes of self-contained dwellings now. However, they are not used in the normal sense as independent residential units. Their use for holiday accommodation is, in my opinion, materially different to a use of premises by a household as the long term home of the person or persons comprising that household. Put in simple terms, no one lives in these cottages and has not done so since 1985. This requires no definition of legal principle; it is a common sense conclusion derived from the facts of this case ... my conclusion [is] that the ten holiday 'cottages' comprise one planning unit, together with the main house, and that they are not individual or single dwellinghouses.

The Appeal on Ground (d)

110. Concerning the appeal on ground (d) against Notice No.1, the material change of use which has occurred is not, as I have concluded above, a use of separate parts of these outbuildings as ten single dwellinghouses, but a use of the whole as one unit for the purposes of holiday accommodation comprising ten apartments. ...."

In his decision letter the Secretary of State accepted all the Inspector's findings of fact. In dismissing the appeal against the first notice on grounds (b) and (c), he agreed that, on the evidence presented, the present use of the outbuildings "is, as an entity and not individual single dwellinghouses, as holiday accommodation." In regard to the appeal on ground (d), the Secretary of State accepted the conclusions in paragraph 110 of the Inspector's report and agreed that the breach of planning control alleged in the first notice was one to which subsection (3), not subsection (2), of section 171B applied. Accordingly, the appeal on ground (d) also failed.

The following provisions of the Act are material to the appellant's appeal under section 289. Section 55(1) makes general provision for the meaning of "development", including the making of any material change in the use of any building or other land. So far as material, section 55(3) provides:

"For the avoidance of doubt it is hereby declared that for the purposes of this section -

(a) the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used. ..."

Section 171B imposes time limits on the periods during which enforcement action in respect of breaches of planning control may be taken. Subsection (1) is not material. Subsection (2) provides:

"Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach."

Subsection (3) provides that in the case of any other breach of planning control, no enforcement action may be taken after ten years. Finally, section 336(1) includes the following definition:

"'Building' includes any structure or erection, and any part of a building, as so defined ..."

The essence of the appellant's case, as advanced by Mr Alesbury on his behalf, is that the Secretary of State erred in law in accepting the Inspector's conclusion (para 110) that the use to which a change had been made was not "a use of separate parts of these outbuildings as ten single dwellinghouses, but a use of the whole as one unit for the purposes of holiday accommodation comprising ten apartments". Mr Alesbury makes two criticisms of the Secretary of State's decision: first, that it was wrongly based on the concept of the planning unit; second, that it was based on an incorrect view of the meaning of "dwellinghouse".

The foundation for the first criticism is the Inspector's view (para 102) that it was first necessary to establish the planning unit or units within which the activity alleged to have been in breach of planning control had been taking place and his conclusion (para 106) "that the ten holiday 'cottages' comprise one planning unit, together with the main house, and that they are not individual or single dwellinghouses." It is clear from the judgment of Simon Brown LJ (with whom Dillon and Farquharson LJJ agreed) in Van Dyck v. Secretary of State for the Environment [1993] 1 PLR 124 that the concept of the planning unit has no part to play in a case where there has been a change from use as a single dwellinghouse to use as two or more separate dwellinghouses within section 55(3)(a). At p.133D, Simon Brown LJ said:

"As stated, the purpose of the concept - the only point in deciding upon the appropriate planning unit -is to decide whether or not there has been a material change of use. Here, undoubtedly, there has been: section 55(3)(a) so declares. There is, accordingly, no possible need to invoke the doctrine of the planning unit to decide the question. Here, moreover, it was the very act of creating two separate units of occupation out of a single pre-existing unit which constituted the making of the material change of use. How inappropriate, therefore, that one should seek assistance from a doctrine substantially founded on units of occupation to illuminate the nature of the breach of planning control in question or to determine the appropriate target for enforcement."

The actual decision in that case was that the predecessor of what is now section 171B(2) of the Act, when construed in the context of section 55(3)(a) and the definition of "building" in section 336(1), is capable of applying to a subdivision of one single dwellinghouse into two or more separate dwellinghouses so as to give protection from enforcement action to the new dwellinghouses after the four year period has expired. I agree with Mr Alesbury that both the observations of Simon Brown LJ and the actual decision are directly applicable to this case. However, in Van Dyck it was not suggested, it could not have been suggested, that the units into which the dwellinghouses had been subdivided were not themselves single dwellinghouses for the purposes of what is now section 171B(2). It is the Secretary of State's decision of that question to which Mr Alesbury's second criticism is directed.

The question whether the ten self-contained units of residential accommodation are being used as single dwellinghouses was a question of fact and degree to be determined by the Secretary of State on the basis of the facts found by the Inspector and accepted by him. A question of fact and degree, although it is a question of fact, involves the application of a legal test. If the Secretary of State applies the correct test, the court, on an appeal under section 289, can only interfere with his decision if the facts found are incapable of supporting it. If, on the other hand, he applies an incorrect test, then the court can interfere and itself apply the correct test to the facts found. Mr Alesbury submits that here the Secretary of State has applied an incorrect test.

The particular conclusion at which Mr Alesbury's attack has been aimed is in the first part of para 106, where the Inspector, while accepting that the units certainly have the physical attributes of self-contained dwellings, nevertheless opined that they are not used in the normal sense as independent residential units because their use for holiday accommodation is "materially different to a use of premises by a household as the long term home of the person or persons comprising that household" and because "no one lives in these cottages and has not done so since 1985". Mr Alesbury submits that the Inspector erred in thinking that such considerations were relevant, an error compounded by his view that no definition of legal principle was required.

In support of his submission that the Inspector, and through him the Secretary of State, adopted an incorrect meaning of "dwellinghouse", Mr Alesbury has relied on the judgment of McCullough J in Gravesham B.C. v. Secretary of State for the Environment (1982) 47 P & CR 142. In that case it was held that the Secretary of State had been entitled to find that a building described for planning purposes as a "weekend and holiday chalet" was a dwellinghouse within Class I of Schedule 1 to the Town and Country Planning General Development Order 1977. McCullough J's judgment contains a valuable discussion of the circumstances in which a building might or might not be regarded as being a dwellinghouse. He concluded that the distinctive characteristic of a dwellinghouse is its ability to afford to those who use it the facilities required for day-to-day private domestic existence. In coming to that conclusion, he firmly rejected the notion that a building which had that characteristic ceased to be a dwellinghouse because it was occupied only for a part or parts of the year or at infrequent or irregular intervals or by a series of different persons.

In my judgment McCullough J's approach to the meaning of "dwellinghouse" was entirely correct. Although we were not referred to any of the many other decisions on the meaning of that word in other areas of the law, I am confident that an examination of them would reveal no requirement that before a building can be so described it must be occupied as the permanent home of one or more persons or the like. Nor do ten self-contained units of residential accommodation which would otherwise be properly described as ten single dwellinghouses cease to be used as such because they are managed as a whole for the commercial purpose of holiday or other temporary lettings. Accordingly, I am satisfied that the Secretary of State applied an incorrect test in this case and that, if he had applied the correct test, he could only have properly concluded that the ten units are being used as ten single dwellinghouses within section 171B(2) of the Act.

I would therefore allow this appeal and direct that the Secretary of State's decision be remitted to him for redetermination in accordance with the opinion of the court.

LORD JUSTICE PILL:

I agree.

LORD JUSTICE THORPE:

I also agree.

Order: appeal allowed; judge's order discharged and direction given that the Secretary of State's decision be remitted to him for redetermination in accordance with the opinion of the court; the Secretary of State to pay the appellant's costs of the appeal; order for costs below reversed and Secretary of State to bear those costs also; leave to appeal to the House of Lords refused.