Property law reports

Town and country planning: Permitted development

Permitted development - change of use - claimant council issuing enforcement notices in respect of temporary retail stand erected in front of premises - whether premises having display window - whether change of use to retail permitted - whether stand permitted in connection with operations on premises - class D of part 3 and class A of part 4 of the Town and Country Planning (General Permitted Development) Order 1995 - claim dismissed

North Cornwall District Council v Secretary of State for Transport, Local Government and the Regions and another: QBD (Mr Justice Sullivan): 28 October 2002

The second defendant, C, ran a company that sold seashells and 'oceancrafts'.

He was granted a licence to occupy premises in a converted house in Bude, Cornwall, over the 2001 summer season, for the purpose of selling his goods to visitors.

He erected an exhibition stand on the forecourt, from which he commenced trading.

The existing lawful use of the premises was within class A2 of the Town and Country Planning (Use Classes) Order 1998.

The claimant council issued two enforcement notices requiring the cessation of retail sales and the removal of the stand.

C appealed to the first defendant secretary of state on the ground that there had been no breach of planning control.

The inspector allowed the appeal, having found that since goods in the windows of the premises could easily be seen by passers-by, the use of the premises for retail purposes was permitted development under class D of part 3 of the Town and Country Planning (General Permitted Development) Order 1995 (planning permission not required for the change of use of premises with a display window at ground-floor level to class A1 shop use from class A2 use); and the stand benefited from the permitted development rights in class A of part 4 of the 1995 order as a temporary structure required in connection with operations being or to be carried out on the land, since its purpose was to enable retail sales to commence while the main building was being adapted for retail use.

The council appealed against that decision under section 289 of the Town and Country Planning Act 1990.

It submitted that the term 'display windows' required more than that goods could easily be seen in them, and meant windows that were designed as, or had the function of, display windows; there had been no change of use to retail before the erection of the stand, but merely an intention to change it, since no work had been done to the building at that date; and class A of part 4 did not cover structures whose function was to facilitate a change of use to retail, as opposed to structures needed to enable an existing retail use to continue during works.

David Forsdick (instructed by Sharpe Pritchard, as agent for the solicitor to North Cornwall District Council) for the claimants; James Strachan (instructed by the Treasury Solicitor) for the first defendant; the second defendant did not appear and was not represented.

Held: The appeal was dismissed.

Class D was intended to facilitate changes of use to retail use, and the council's interpretation of 'display window' was unduly restrictive.

Whether a window was a display window would depend upon the particular facts of the case.

Although not every ground-floor window was a display window, some being too high, or too small, the inspector had been entitled to conclude that the windows of C's premises were sufficiently large and prominent to qualify as display windows.

Accordingly, a change of use to retail use was permitted.

The council had taken an unduly narrow view of class A.

It was clearly established that class A was not limited to permitting builders' huts and similar structures required for the works themselves, and that a temporary structure could be required 'in connection with' operations if it were needed to enable an existing retail use to continue during the course of the works.

A structure that enabled retail use to commence while the main building was converted for that purpose could equally be said to be required 'in connection with' those operations.

Since that was so, and given that class A referred to operations 'to be carried out', the exact date when the works began or trading commenced was irrelevant.

In any event, on the facts of the case, there had already been a change of use to retail by the time the stand was erected.

Although the mere intention to make a change of use was not sufficient to amount to such a change, and mere occupation of premises with that intention would rarely suffice, the inspector had been entitled, in the instant case, to find that the change of use had commenced immediately upon occupation.

Landlord and tenant: Excluded tenancy

Tenant evicted from property - landlord claiming excluded tenancy - whether landlord sleeping at property on purely temporary basis rendered tenancy an excluded tenancy for purposes of section 3A(2) of the Protection from Eviction Act 1977

Sumeghova v McMahon; CA (Lords Justice Chadwick and Longmore): 24 October 2002

The appellant landlord owned two neighbouring flats, one of which was temporarily occupied by his children.

Although he spent a considerable amount of time at the flat occupied by his children, and took his meals there, he slept in a room in the neighbouring property.

The appellant granted the respondent the tenancy of a room in the neighbouring property, but evicted her after a few months.

At the time of the eviction, he intended to move into his children's flat within a matter of weeks.

The tenant issued proceedings, claiming damages for, among other things, unlawful eviction under the Protection from Eviction Act 1977.

The landlord contended that the tenancy had been an excluded tenancy under section 3A(2) of the 1977 Act, since the tenant shared the accommodation with the landlord and, throughout the period of the tenancy, the premises were the landlord's only or principal home.

At first instance, it was held that the landlord's principal residence was the flat temporarily occupied by his children, and that the tenancy was, therefore, not excluded.

The landlord appealed on the grounds that the judge had misconstrued section 3A(2).

Patrick Reynolds (instructed by Redferns) for the appellant; Alice Deschampsneufs (instructed by Peter Horada) for the respondent.

Held: The appeal was allowed.

Although the place where a person slept was not wholly decisive in determining the principal place of residence, it was extremely important.

On the facts, the landlord had been residing principally at the neighbouring property, both immediately prior to the granting of the tenancy and also at the time that it had ended.

The fact that the arrangement was temporary, or the fact that the landlord did not intend to remain at the neighbouring premises, was irrelevant for the purposes of the Act.