England and Wales High Court (Administrative Court) Decisions

4. The Appellant's appeal to the Secretary of State against the enforcement notice was dated 15 December 1999. An appeal may be brought on any of the grounds specified in section 174(2) of the 1990 Act. There were two grounds of appeal. The first and principal one was made pursuant to section 174(2)(d) namely "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 the matters stated in the enforcement notice]". It was alleged that the enforcement notice had been issued outside the statutory time limit.

5. The second and more limited ground was made pursuant to paragraph (g) of section 174(2) of the 1990 Act, namely "that any periods specified in the notice....[as the time for compliance with the notice]....falls short of what should be reasonably be allowed." It was alleged that the three month period specified in the notice was too short. This ground of course would not have any application if the first ground were to be successful since then there would be no valid notice which would have to be complied with at all.

6. The appeal proceeded by way of written representations despite the Secretary of State's preference for the matter to be heard by way of a public inquiry. After considering the written representations, the Inspector issued his decision letter on 9 August 2000. He dismissed the appeal in relation to ground paragraph (d) but upheld the appeal in relation to paragraph (g) to the extent of specifying six months rather than three as the appropriate time for compliance.

7. The Appellants now challenge in this court the Inspector's rejection of their appeal on paragraph (d). In essence the Appellants accept that there was a change of use, but they say that change of use which was the subject of the enforcement notice had become lawful, arguably in respect of the whole of the building and at least in respect of part of the building, as a result of the passage of time. This argument requires consideration of the relevant statutory provision which is section 171(B) of the 1990 Act. This sets down time periods in which an enforcement notice may be served. In relation to periods in the case of alleged unlawful changes of use, it provides as follows:

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

(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."

8. It will be seen that for most cases where there is a change of use, immunity against enforcement is only provided after ten years, but there is an exception where a building is used as a single dwelling house. In that case a shorter period of four years will suffice to protect the new use from challenge.

9. It is common ground that following the decision of the Court of Appeal in Van Dyck v Secretary of State for the Environment and Southend-on-Sea Borough Council (1993)66 P&CR 61, the reference to a "building" in sub-section (2) includes a part of a building. In other words, no enforcement proceedings may be taken once a part of a building has been used as a single dwelling house for four years or more. The policy behind this provision, as explained by Simon Brown LJ in the Van Dyck case, is Parliament's desire to protect long-established residential accommodation.

10. In this case the enforcement notice was issued on 25 November 1999. Accordingly, in order for sub section (2) to bar enforcement, the change of use to a single dwelling house would have had to be established by 25 November 1995. The onus was on the Appellants to show that the change in use had been made by that date.

The Inspector's decision

11. Each of the Appellants provided affidavit evidence to the Inspector which is referred to in his decision. In paragraphs 4 and 5 of his affidavit, Mr Baker said this:

"4. Since the beginning of September 1994....I have occupied part of the agricultural store as my sole domestic residence continuously up to and including the date hereof.

5. The part of the building occupied comprises two rooms being a washroom and toilet and another room used as a bedroom and as a sitting/dining room"

12. Mrs Baker's evidence was slightly different. She said that Mr Baker had moved into one room in the agricultural building on the site since when he had lived in that building as his sole residence. She and their son had then lived with Mr Baker in the building continuously since May 1999. She said that in the six months prior to her affidavit being sworn, which was in June 1999, the two larger rooms previously used for storage had been converted to a bedroom and a kitchen. Further information about the position was apparently given to the Inspector by Mr Baker when the Inspector made a site visit. I refer to the potential significance of this information below.

13. The Appellants' representative explained the apparent divergence in the evidence of Mr and Mrs Baker to the Inspector by saying that they were referring to different periods of time. Be that as it may, what is consistent with the evidence of both is that only part of the premises were being used for dwelling purposes by November 1995.

14. The Council in its submission to the Inspector identified the inconsistencies between the evidence of Mr and Mrs Baker to which I made reference. They also referred to a previous planning application in 1995 when an Inspector had visited the site in late October and had apparently made no mention at all of the fact that any part of the building was being used for residential purposes. The Council suggested that at best it could only be said that a single room was then being occupied by November 1995.

15. The conclusions of the Inspector are principally contained in paragraphs 22-24 of his decision letter. The material parts of those paragraphs are as follows:

"22 While I am prepared to accept that Mr Baker moved into the agricultural store from matrimonial home in September 1994, it would appear that he occupied no more than 2 rooms, the secure tool store at the back, which had a window and at most a WC and wash basin, and the adjacent tractor store where he stored his domestic furniture and appliances....No evidence has been submitted to suggest that, prior to that date, Mr Baker had any of the usual facilities for modern living, such as a proper bathroom and kitchen, and he must have lived a somewhat basic existence.

23.....Nevertheless, while part of the agricultural store may have become Mr Baker's sole residence from September 1994, this would only have resulted in a material change of use of the planning unit to a mixed use of agricultural store and use for residential purposes which, would be a change of use for which, under section 171B(3), would have had to commence 10 years prior to the date the enforcement notice was issued to be immune from its requirements.

24. Section 171B(2) states that where there has been a breach of planning control consisting of the change of use of any building to use as a single dwelling house, no enforcement action my be taken after the end of a period of 4 years beginning with the date of the breach. In my view, this would only apply if the whole, and not part, of a building is converted to a dwelling. In any event, although Mr Baker was residing in the agricultural store, its actual conversion to a dwelling house did not take place until after his reconciliation with Mrs Baker and she came to live on the appeal site in May 1998. I conclude that, on the balance of probabilities, the change use of the agricultural store to a single dwelling house did not take place before the relevant date of 25 November 1995, 4 years before the date on which the enforcement notice was issued. The appeals on ground (d) therefore fail."

16. The parties are at odds about precisely what the Inspector has decided in these paragraphs. Mr Fookes, for the Appellant, says that the Inspector in paragraph 23 has accepted that part of the building at least had become Mr Baker's sole residence from September 1994. He further submits that as such, that part should be considered as a single dwelling house and that accordingly, in the light of the Van Dyck case, the four year limitation period should have been applied. He further contends that the reason why the Inspector did not apply the sub-section in this case was because, as he submits is plain from paragraph 24 of the decision, the Inspector was under a misconception that the provision applied only if the whole and not just part of the building was converted to a dwelling. The Inspector had failed to have regard to the Van Dyck case.

17. Mr Corner, for the Secretary of State, contended that on a fair reading of the decision it was plain that the Inspector had never accepted that such occupation as there was meant that Mr Baker was at any time using the building as a single dwelling house. He made reference to the decision of McCullough J. in Gravesham Borough Council v Secretary of State (1982) 47 P.&C.R. 142. At page 146, the judge had said that in order to be a dwelling house, a building should "ordinarily afford the facilities required for day to day private domestic existence." Mr Corner sought to bolster this argument by pointing out that the part occupied was in any event not separate and self-contained but was relatively arbitrarily carved out of the whole building. He said that in view of the observation of the Inspector in paragraph 22 of his decision, namely that Mr Baker did not have the usual facilities of modern living and that he lived a somewhat a basic existence, it was clear that the Inspector was not concluding that even the part in which Mr Baker was living could properly be described as a single dwelling house. Mr Corner accepted that read literally the reference in paragraph 24 to the fact that section 171(B)(2) only applied where the whole of the building is converted to a dwelling, and not a part, was an error of law. However, he submitted that the Inspector should be taken to mean that it was only in the particular circumstances of this case that that was so, precisely because the Inspector was concluding that such residence as there was did not in the circumstances of this case constitute using the part of the property as a dwelling house.

18. I am not persuaded that the sentence in paragraph 24 can be read as Mr Corner suggests. It seems to me that the Inspector was making the error of saying that the whole of the building had to be converted to a dwelling and not simply a part, and I consider that the use of the indefinite article "a" before building support that construction. It suggests that he was intending to express what he considered to be a general principle. In addition, if the Inspector were merely intending to refer to the particular circumstances of the case , I think he would have made that clearer. It seems to me that the Inspector did not think it necessary finally to resolve the question of whether the part of the building may have been used as a separate residence such as to constitute a single dwelling precisely because he thought that it would make no difference to the outcome of the case. His conclusion that the part of the agricultural store `may have become' Mr Baker's single residence demonstrates this. On his analysis, sub-section (2) of section 171(B) was inapplicable and accordingly the ten year period would apply even if there had been a change of use of part of the building for residential purposes.

The grounds of appeal

19. There are three grounds advanced before me. The first ground is that the enforcement notice is too wide. It purports to prevent the Appellants using any part of the building as a dwelling. That, says Mr Fookes, is unlawful since the Appellants had by virtue of section 171(B)(2) already acquired the right to use at least part of the building as a single dwelling house without being subject to any enforcement notice since the use had been established prior to 25 November 1995. Accordingly, he submits that even if the planning authority could properly restrain the Appellants from using the whole of the building as a dwelling house, it could not properly prevent them from continuing to enjoy the use which they had prior to the change which was the subject of the enforcement notice. He relied upon section 57(4) of the 1990 Act which in substance provides that where there is an unauthorised development and an enforcement notice has been issued, the use can be changed back to the purpose for which the property could lawfully be used as if the development, to which the enforcement notice relates, had not been carried out.

20. The second ground of challenge is the allegation that the Inspector failed properly to describe the factual position as it was in 1995. I have referred already to paragraph 22 of the Inspector's decision in which he had concluded that Mr Baker had occupied no more than two rooms, the washroom and the room that he stored his domestic furniture and appliances. Mr Baker has made an affidavit in these proceedings in which he contends that this was wrong. He says that when the Inspector attended the site, he informed the Inspector that he had in fact used three rooms, the washroom, the bedroom, and a third room for storing furniture. In effect this comprises the use of the whole of the building. The Inspector filed a witness statement in response in which he says that it was his clear understanding that only two rooms were used - a washroom, and a bedroom which was also used as a room for storing domestic furniture. Mr Fookes for the Appellant says that even if the Appellants were at fault in not having made the position clear, the Inspector did in fact make his determination on a factual misunderstanding. Accordingly, his decision is based on a false premise, and he submits that the court should in those circumstances remit the matter for a reconsideration of the case on the proper factual basis.

21. The potential significance of this ground is that if all three rooms were in use then it raises the possible argument that the whole of the building, and not merely part of it, might have been used for residential purposes and therefore could, arguably at least, constitute a single dwelling house.

22. The third ground is directed at the Inspector's conclusion at paragraph 23 that even if Mr Baker had lived in the premises from September 1994 that only gave rise to a mixed use for agricultural store and for residential purposes. The Appellants say that it is plain beyond peradventure that the building was never used as an agricultural store at all. True it is that that was the use retrospectively conferred by the planning authority in February 1992, but in fact no part of the building had ever been used for that purpose. The Appellants had not been involved in agriculture. Indeed, as the Inspector recognised, they had been breeding horses.

23. I confess that in my judgment this argument goes nowhere. Mr Fookes realistically recognised that if the whole of the building was not used as a dwelling house prior to November 1995, then its subsequent for that purpose would need planning permission, whether the original use was for agricultural storage or was for something else. Conversely, if the whole building had been used for residential purposes by that time so that it constituted a single dwelling house, it would not matter what the earlier use had been. Either way, the identification of the original use is immaterial and therefore, even if inaccurate, it did not have any bearing on the decision. In these circumstances any defective reasoning would not give a right to relief under section 289: see Miah v Secretary of State for the Environment [1986] J.P.L 756. In the end Mr Fookes accepted that the only possible significance of this argument was that it might lend support to the view that the Inspector had not taken sufficient care properly to analyse the use to which the premises had been put prior to November 1995, and to that extent it was suggested that it reinforced the argument in relation to the second ground. I do not think that it even has that potential significance. In my view the Inspector was entitled to refer to the prior use being agricultural use given that that was the original lawful use and no-one was contending specifically that the lawful use had become anything else. But in any event, since in my judgment absolutely nothing turns on that characterisation, I propose to say no more about this ground.

24. I now turn to consider the arguments in relation to the two principal grounds.

25. The Appellants contend that the notice is invalid insofar as it forbids more than is necessary to prevent the unlawful breach of planning control. (As this argument is now put, it seems to me to fall under paragraph (f) of section 174(2), rather than being a paragraph (d) challenge, but nothing turns on that.). There are two elements in this argument. First, the Appellants have to show that the Inspector did find that part of the building was used as a single dwelling, or at least arguably so, prior to 25 November 1995. Second, they must show that the enforcement notice unlawfully bars that use for the future.

26. As to the first element in the argument, I have already indicated when looking at the Inspector's decision that in my opinion the Inspector did not reach a concluded view about whether part of the building had ever been used as a single dwelling house, although he appears to have been prepared to accept that it might have been. In these circumstances I think that the enforcement notice must be judged on the assumption that the Inspector might have found in the Appellants' favour that part of the building at least was used as a single dwelling. If that be the case, then the only question is whether, assuming that such use could be established, the terms of the enforcement notice, which stop the Appellants using any part of the building as a dwelling, can stand as it is. Mr. Fookes says plainly not; section 57(4) permits the Appellants to revert to the earlier lawful user, namely the use of part of the building as a dwelling. Mr. Corner contended that this was not possible because the "planning history", as he put it, had changed as a result of the unlawful development. He submitted that in the circumstances the original lawful use had been lost. Even if it were ever right to describe the occupation of part of the building as the use of that part as a single domestic dwelling within the meaning of section 171B(2), that use ceased for good once the whole of the building was used for that purpose. He submitted there was a question of fact and degree whether the original use had been subsumed within the new unlawful use or not.

27. I do not accept this argument. In my view there is no reason why the principle in section 57(4) should not operate and Mr. Corner could cite no authority for the proposition that the right to revert to the prior lawful use could be denied in these circumstances. If he were right, there would be many cases where it might be argued that a prior lawful use had in some way become subsumed into an unlawful use so as to be lost forever. The unlawful development would be effective to stifle the existing user right but would confer no new right. I see no justice or logic in such a result.

28. It follows that in my judgment this first argument succeeds.

29. The second argument is, as I have indicated, potentially of greater significance to the Appellants since, if correct, it would require the facts themselves to be reconsidered. The argument as presented by Mr. Fookes has an attractive air; surely, he says, if the Inspector has albeit innocently misunderstood the factual premise on which the decision relies, the court ought to require him to reconsider. Mr. Corner for his part, suggested that the Inspector's witness statement produced to the court showed, albeit in a suitably muted way, that he simply did not accept what Mr. Baker was now saying. I would not myself be minded to read the witness statement in that way, but it matters not since in any event I am not persuaded by Mr. Fookes' argument. In my view in the written procedure it is imcumbent on the parties to ensure that the factual submissions they wish to make are unambiguously before the Inspector. Moreover, I bear in mind that the onus was on the Appellants to satisfy the Inspector that the use had changed more than four years before the enforcement notice was issued. It would be highly detrimental to the procedure if informal discussions at the site visit could be relied upon later significantly to amend the way the case had been put in the written submissions. If the written submissions are insufficiently detailed, the party concerned must take the risk that further oral comments may be misunderstood or construed in the light of that written evidence. In this case it had never been suggested to the Inspector that the whole of the building had been used at any time before late 1998 for residential purposes. Indeed, Mr Baker said in terms that he had occupied part of the building for that purpose. It may be that this was because Mr. Baker had not appreciated the significance of the fact that he stored furniture in another room, as Mr Fookes submitted. But that does not in my judgment justify the court in requiring the Inspector to reopen his findings of fact.

Conclusion

30 I would uphold this appeal on the first ground argued. It follows that the decision is remitted back to the Secretary of State. It may be that he considers that in the circumstances he should give effect to his original view that an inquiry is more appropriate for this type of case. I should add that whilst I have not upheld the challenge based on a misunderstanding of the facts, I do have some misgivings that there may in fact have been some confusion about precisely what was being said by the Appellants about the extent of Mr. Baker's occupation before November 1995. Whilst I would acquit the Inspector of any fault on that score, since any confusion is in my view to be laid at the door of the Appellants, the Secretary of State may think it right in the circumstances to investigate the facts afresh.

MR JUSTICE ELIAS: For the reasons given in the judgment, which has been notified in advance to counsel, this appeal is upheld and the matter is remitted to the Secretary of State.

MR WALTON: Thank you. Your Lordship, in light of your judgment, I seek an order for costs. With my learned friend's leave, we have had discussions on the initial schedules that were put in and we have come to the agreed position that an order of £10,000 inclusive of VAT would be appropriate.

MR SHARLAND: My Lord, that is correct.

MR JUSTICE ELIAS: In that case that is the order I will make: £10,000 inclusive of VAT. Thank you very much.