Something to dwell on

The Court of Appeal dealt with an important issue in respect of the four-year and ten-year immunity from enforcement rule in First Secretary of State v Arun District Council and Karen Felicity Brown [2006]. The question of construction for the Court was whether a breach of condition resulting in a change of use of a building to use as a single dwelling house was governed by the four-year time bar in s171B(2) of the Town and Country Planning Act 1990 or the ten-year time bar in s171B(3) of the Act.

Ms Brown had breached a planning condition attached to the grant of permission that an extension to her house should be used as separate residential accommodation. The local authority issued an enforcement notice for breach of planning condition and contended that enforcement action was not subject to the four-year time limit in s171B(2) in respect of a change of use to a single dwelling house because the enforcement action was not against the change of use but against the breach of condition and therefore s171B(3) applied, providing immunity after ten years.

However, the Court of Appeal, overturning the judge at first instance, held that it mattered not whether the breach of planning control was the carrying out of development or a breach of condition. The key issue was that the breach of planning control resulted in the change of use to a single dwelling house. The Court held that the wider context of the Act and the legislative history all indicated that the time for taking enforcement action against such a breach of planning control was four years.

The Court found that clear legislative intent was that householders who changed the use of a building to a single dwelling house should be immune from enforcement action after four years and that it would be illogical for different periods to apply for immunity depending on whether the enforcement action was taken on the basis that it was development without permission or a breach of a planning condition.

Meaning of ‘dwelling house’

The recent decision in Grendon v The First Secretary of State and Cotswold District Council [2006] also raised issues in respect of the use of a building as a dwelling house. A certificate of lawfulness under s191 of the Town and Country Planning Act was sought for use of premises as a single dwelling house on the basis that enforcement action could not be taken as the change of use had taken place more than four years ago.

In this case, the issue was whether the one-room building was a dwelling house and if so whether it had been used as such for the relevant four-year period. The Council refused the certificate and the appellant appealed to the Secretary of State. The inspector appointed by the Secretary of State dismissed the appeal on the grounds that the building did not have the facilities necessary for day-today living, such as a bathroom or running water, and therefore was not a dwelling house. He also stated that as he did not find that the building was a dwelling house, it could not be made one simply by the fact of the appellant living in it. He accepted that the building contained the basic facilities for Mr Grendon’s ‘hermit-like’ existence but that it was not constructed as a house and did not look like a house.

The inspector’s decision was challenged on the basis that he had erred in respect of his approach to what was a dwelling house and that user of the premises was determinative in this respect. In this regard, reference was made to the House of Lords decision in Uratemp Ventures Ltd v Collins [2001], decided under the Housing Act 1988. The Court considered that this decision was made in the context of a completely different statutory regime for different purposes, and where different considerations applied. In the context of the planning regime the object of the Act was the issue of land use and the competing demands of private and public interest in relation to such use.

The judge did not consider that the House of Lords case was seeking to lay down a universal definition of the term ‘dwelling house’ that was to apply across the board to that expression in any Act of Parliament.

Having reviewed the relevant case law under the planning acts, the judge considered that the physical attributes were relevant and that the inspector had not erred in concluding that the building was not a dwelling house. He also held that the inspector’s approach to the significance of the user was not flawed in light of his findings regarding the character of the premises.

Accordingly, the inspector’s decision was upheld and the appeal dismissed. This judgment emphasises that in land use terms the character or use of a building is to be determined objectively under s192 of the Town and Country Planning Act 1990, and that the subjective intention of the user cannot be determinative in reaching that decision as a matter of fact and degree.

Appeals and site visits

In Chichester District Council v First Secretary of State and Mr Green [2006] the High Court held that in the circumstances of the appeal the inspector had erred in failing to undertake an accompanied site visit in order to properly determine the character of a building.

The appellant, Mr Green had constructed a building he claimed was necessary for agricultural purposes. The Council contended that the building was tantamount to a new dwelling. Although the inspector had conducted an unaccompanied site visit from a public footpath, he had not had the benefit of viewing for himself the internal layout, the size of the doors, the electrical fittings and the food preparation area which was suitable for use as a domestic kitchen, or other internal features of the building.

The inspector allowed the appeal having seen the external design of the building and also plans and photographs of it.

The inspector said in his witness statement that he had sufficient information to question the design of the building. However, the Council’s case was that the building was tantamount to a dwelling and therefore it was necessary not only to question the design but to determine whether or not the Council’s contention was correct.

It had been part of the Council’s case that the scale, form and composition of the building gave the strong appearance of a building used for residential rather than agricultural use.

The Court agreed that the inspector might have been materially assisted in determining the central issue between the parties by actually going inside the building and getting a first-hand feel for it. Accordingly, the Court considered that the Council had been prejudiced by the procedural error in not undertaking an accompanied site visit. Consequently, the Court quashed the decision of the inspector appointed by the First Secretary of State.

Gypsies and travellers: injunctions and repetitive applications

The courts have continued to be occupied by matters relating to Gypsies and travellers.

The Court of Appeal in Wychavon District Council v Rafferty and Connors [2006] upheld Newman J’s decision to dismiss an application to vary an injunction requiring Gypsies to leave a site they had occupied in breach of an existing court order. It also upheld the sentence imposed for contempt of court requiring them to leave the site within two weeks or face imprisonment. Other recent cases where injunctions have been upheld and granted include South Bedfordshire District Council v Price & ors [2006] and South Cambridgeshire v Flynn & ors [2006].

In Jeeves (R on the application of) v Gravesham Borough Council [2006] the respondent sought to rely on s70A as substituted by the Planning and Compulsory Purchase Act 2004 by which it may decline to determine an application in certain circumstances where it is considered that repetitive applications are being made in respect of similar developments on the same site to wear down the resistance of the local planning authority. The High Court, however, held that it had unlawfully refused to determine an application for permission to site a mobile home and touring caravan. Although the application was similar to one recently refused by the Council, it had not applied circular guidance 14/91. The previous application had been made by a different applicant and although the Council claimed there was a ‘link’ between the two applicants, there was no evidence to show that the previous applicant was behind this subsequent application.

On the face of it, the Court considered that this was a separate application based on the circumstances of the claimant and his family. Accordingly, the decision of the respondent not to determine the application under s70A was quashed.  © Property Law Journal