Town and country planning - Development - Use classes
R (on the application of Harbige and another) v Secretary of State for Communities and Local Government: Queen's Bench Division, Administrative Court (London): 21 March 2012
Section 55 of the Town and Country Planning Act 1990 provides, so far as material: '(2) The following operations or uses of land shall not be taken for the purposes of this act to involve development of the land... (f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the secretary of state under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.'
Article 3 of the Town and Country Planning (Use Classes) Order 1987, SI 1987/764 provides, so far as material: '(1) Subject to the provisions of this Order, where a building or other land is used for a purpose of any class specified in the schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land.'
In October 2009, the local planning authority issued an enforcement notice against Pecan under section 172 of the Town and Country Planning Act 1990. The breach of planning control alleged by the notice was an unauthorised change of use from the pre-1994 authorised light industrial use to the then current unauthorised use which included, inter alia, use as a place of worship. That latter use fell within class D1 of the Town and Country Planning (Use Classes) Order 1987, SI 1987/764 (the Order). Pecan appealed relying, inter alia, on section 174(2)(d) of the act, namely that the time for taking enforcement action had expired.
The relevant time limit was contained in section 171B(3) of the act which provided that ‘no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach’. The planning inspector found that from 1993 onwards there had been a number of unlawful uses of the property all falling within class D1 of the Order. He considered whether the changes of use which had occurred benefited from the provisions of the Order so as not to be development under the act and therefore outside planning control.
The inspector rejected the authority’s submission that each new use of the property was a fresh breach of planning control, thereby resetting the clock for the purposes of enforcement. He concluded that Pecan had established a continuous ten-year breach of planning control, and thus had acquired immunity under section171B(3) of the act. Accordingly, the appeal was allowed. The claimants, who were the owners and occupiers of an immediately adjoining flat, applied for judicial review of that decision.
The claimants submitted that the provision in s 55(2)(f) of the Act and art 3(1) of the Order that a change of use from one within a particular class to another use within the same class ‘shall not be taken for the purposes of [the act] to involve development of the land’ applied only where the existing use was lawful. Accordingly, immunity from enforcement could only be acquired where the specific use enforced against had been continuous for the requisite period. The application would be dismissed.
It was quite clear that the structure of the act and the language used did not permit the interpolation of the word 'lawfully' in section 55(2)(f) nor did it permit a construction in which a single purpose of any use class had to be undertaken before immunity was conferred on a use within that class.
Crucial to the operation of the enforcement provisions was the concept of the carrying out of development without planning permission. Where the very activity at issue did not involve development at all, it was not possible to turn it into development for the purposes of enabling enforcement action to be taken against it. The effect of a sequence of changes within class D1 was not a material change of use which had somehow received statutory sanction. Whilst difficulties might arise for local authorities where there was a change in the manner of the operation of a use that did not warrant the interpretation given to section 55(2)(f) which the claimants had contended for.
It would be quite wrong for an event which did not constitute development to somehow constitute the recommencement of the running of a ten year period. If it could do so, it raised the question of what other events could make the ten year period start to run again, for example, an intensification of an existing use.
Local authorities knew that uses could spring to life without amounting to a material change of use and they had to know that uses could change within the Order. Where the local authority was faced with an unauthorised use which it did not in itself take exception to but was aware that a further change could take place, it was for the local authority to take enforcement action. The position of a local authority seeking to enforce against a sequence of uses, all within a particular use class, none lasting ten years so as to confer immunity but before the expiry of ten years of unauthorised use was not as difficult as had been suggested. The enforcement notice could properly strike at the existing use being carried on where there was no ten year use within class D1.
In the instant case, the inspector had been entitled to conclude that after ten years of use within class D1 no enforcement action could be taken. None of the changes of use had constituted development.
Thurrock Borough Council v Secretary of State for the Environment  All ER (D) 373 (Feb) considered; R (on the application of Tendring District Council) v Secretary of State for Communities and Local Government  All ER (D) 14 (Oct) considered.
John Litton QC and Charles Banner (instructed by Bircham Dyson Bell LLP) for the claimants; James Strachan and Jonathan Auburn (instructed by the Treasury Solicitor) for the secretary of state.
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