Immunity from enforcement

Immunity from enforcement: recent cases on the four-year and ten-year rule Graham Gover Solicitor

s171B of the 1990 Act

s171B of the 1990 Act (1) building, engineering, mining or other operations, 4 years from substantial completion

s171B of the 1990 Act (1) building, engineering, mining or other operations, 4 years from substantial completion (2) the change of use of any building to use as a single dwellinghouse, 4 years from the breach

s171B of the 1990 Act (1) building, engineering, mining or other operations, 4 years from substantial completion (2) the change of use of any building to use as a single dwellinghouse, 4 years from the breach (3) in the case of any other breach of planning control, 10 years from the breach

Four cases Stockdale Continuous use 2009 Fidler Substantial completion 2010 Beesley Change of use to a dwellinghouse 2010 Sumner Operational development AND use? 2010

Collins J

Hoddington Farm Cottages

Hoddington Farm Cottages Timetable:

Hoddington Farm Cottages Timetable: 1950 to 1993 Agricultural occupiers

Hoddington Farm Cottages Timetable: 1950 to 1993 Agricultural occupiers Jan 94 to Jun 97 Non-agricultural occupiers

Hoddington Farm Cottages Timetable: 1950 to 1993 Agricultural occupiers Jan 94 to Jun 97 Non-agricultural occupiers Empty for extensive Jul 97 to Jul 98 refurbishment, 2m marketing

Hoddington Farm Cottages Timetable: 1950 to 1993 Agricultural occupiers Jan 94 to Jun 97 Non-agricultural occupiers Empty for extensive Jul 97 to Jul 98 refurbishment, 2m marketing Jul 98 to May 99 Non-agricultural occupiers

Hoddington Farm Cottages Timetable: 1950 to 1993 Agricultural occupiers Jan 94 to Jun 97 Non-agricultural occupiers Empty for extensive Jul 97 to Jul 98 refurbishment, 2m marketing Jul 98 to May 99 Non-agricultural occupiers July 99 to 9 Mar 07 Marketing, non-ag occupiers

Hoddington Farm Cottages Timetable: 1950 to 1993 Agricultural occupiers Jan 94 to Jun 97 Non-agricultural occupiers Empty for extensive Jul 97 to Jul 98 refurbishment, 2m marketing Jul 98 to May 99 Non-agricultural occupiers July 99 to 9 Mar 07 Marketing, non-ag occupiers 10 Mar to 26 April Empty, ready for sale

Hoddington Farm Cottages Timetable: 1950 to 1993 Agricultural occupiers Jan 94 to Jun 97 Non-agricultural occupiers Empty for extensive Jul 97 to Jul 98 refurbishment, 2m marketing Jul 98 to May 99 Non-agricultural occupiers July 99 to 9 Mar 07 Marketing, non-ag occupiers 10 Mar to 26 April Empty, ready for sale 26 April 2007 CLEUD application

Basingstoke and Deane v SSCLG and Stockdale 2009

Basingstoke and Deane v SSCLG and Stockdale 2009 Two issues in the appeal:

Basingstoke and Deane v SSCLG and Stockdale 2009 Two issues in the appeal: 1. Was the condition now unlawful because the basis of the circular (the development charge) was repealed in 1954?

Basingstoke and Deane v SSCLG and Stockdale 2009 Two issues in the appeal: 1. Was the condition now unlawful because the basis of the circular (the development charge) was repealed in 1954? 2. Had the condition been breached continuously for ten years?

Basingstoke and Deane v SSCLG and Stockdale 2009 Two issues in the appeal: 1. Was the condition now unlawful because the basis of the circular (the development charge) was repealed in 1954? 2. Had the condition been breached continuously for ten years? The court agreed with 1: there was no longer a planning policy basis for the condition.

Basingstoke and Deane v SSCLG and Stockdale 2009 Two issues in the appeal: 1. Was the condition now unlawful because the basis of the circular (the development charge) was repealed in 1954? 2. Had the condition been breached continuously for ten years? The court agreed with 1: there was no longer a planning policy basis for the condition. Point 2 did not need to be decided. It is arguably obiter.

Basingstoke and Deane v SSCLG and Stockdale 2009 There was a continuous breach, notwithstanding: 1. Between 31 July 1997 until 1 July 1998 during which the building was empty for substantial refurbishment works.

Basingstoke and Deane v SSCLG and Stockdale 2009 There was a continuous breach, notwithstanding: 1. Between 31 July 1997 until 1 July 1998 during which the building was empty for substantial refurbishment works. 2. From 9 March 2007 until the date of the LDC application on 26 April 2007.

Basingstoke and Deane v SSCLG and Stockdale 2009 De minimis breaches do not count e.g. replacement lettings that take time to materialise.

Basingstoke and Deane v SSCLG and Stockdale 2009 De minimis breaches do not count e.g. replacement lettings that take time to materialise. The 13 month gap did not interrupt the breach:

Basingstoke and Deane v SSCLG and Stockdale 2009 De minimis breaches do not count e.g. replacement lettings that take time to materialise. The 13 month gap did not interrupt the breach: • there was a significant period of breach before

Basingstoke and Deane v SSCLG and Stockdale 2009 De minimis breaches do not count e.g. replacement lettings that take time to materialise. The 13 month gap did not interrupt the breach: • there was a significant period of breach before • it was a clear act in furtherance of the breach

Basingstoke and Deane v SSCLG and Stockdale 2009 De minimis breaches do not count e.g. replacement lettings that take time to materialise. The 13 month gap did not interrupt the breach: • there was a significant period of breach before • it was a clear act in furtherance of the breach • enforcement action could have been taken during this period because the works etc were part and parcel of the breach.

Honeycrock Farm

The Inspector held:

The Inspector held: Main house substantially June 2002 completed and had been lived in for some time before

The Inspector held: Main house substantially June 2002 completed and had been lived in for some time before Straw bales and tarpaulin July 2006 removed

The Inspector held: Main house substantially June 2002 completed and had been lived in for some time before Straw bales and tarpaulin July 2006 removed February 2007 Enforcement notice served

The Inspector held: • the straw bales did not form part of the structure and did not require a builder

The Inspector held: • the straw bales did not form part of the structure and did not require a builder • they were there for the purpose of concealment and they were intended to be removed in time

The Inspector held: • the straw bales did not form part of the structure and did not require a builder • they were there for the purpose of concealment and they were intended to be removed in time • windows were created in the building for the purpose of light and view

The Inspector held: • the straw bales did not form part of the structure and did not require a builder • they were there for the purpose of concealment and they were intended to be removed in time • windows were created in the building for the purpose of light and view • so they were “fundamentally related to the construction of the dwelling”

Sage v SSETR (2003) HL Lord Hope “If it is shown that [the developer] has stopped short of what he contemplated and intended when he began the development, the building as it stands can properly be treated as an uncompleted building against which the four-year period has not yet begun to run”

Fidler v SSCLG and Reigate (2010) Sir Thayne Forbes “In my view, the Inspector’s findings of fact make it abundantly clear that the erection/ removal of the straw bales was an integral, indeed an essential (“fundamentally related”), part of building operations that were intended to deceive the LPA and to achieve by deception lawful status for a dwelling built in breach of planning control.”

Northaw Brook Meadow

Northaw Brook Meadow Timetable:

Northaw Brook Meadow Timetable: December Planning permission granted 2001 for the erection of a hay barn

Northaw Brook Meadow Timetable: December Planning permission granted 2001 for the erection of a hay barn July 2002 Building completed

Northaw Brook Meadow Timetable: December Planning permission granted 2001 for the erection of a hay barn July 2002 Building completed Mr and Mrs Beesley move in August 2002 and live there continuously until ...

Northaw Brook Meadow Timetable: December Planning permission granted 2001 for the erection of a hay barn July 2002 Building completed Mr and Mrs Beesley move in August 2002 and live there continuously until ... August 2006 Application for CLEU

Welwyn and Hatfield Council v SSCLG and Beesley 2010 Court of Appeal

Welwyn and Hatfield Council v SSCLG and Beesley 2010 Court of Appeal The court held:

Welwyn and Hatfield Council v SSCLG and Beesley 2010 Court of Appeal The court held: • applying Sage, there had been a breach of planning control since what was built, internally and externally, was not in accordance with the permission, i.e. for a “hay barn”. It came within s171B(1).

Welwyn and Hatfield Council v SSCLG and Beesley 2010 Court of Appeal The court held: • applying Sage, there had been a breach of planning control since what was built, internally and externally, was not in accordance with the permission, i.e. for a “hay barn”. It came within s171B(1). • The certificate related to the use of the building. The SS argued that if the building is lawful the use for which it was designed must also be lawful “or the legislation would make no sense”. Court did not rule on this point.

Welwyn and Hatfield Council v SSCLG and Beesley 2010 Court of Appeal • The permitted use of the building was for agricultural storage. Its use as a dwelling is, in terms of s171B(2), a change of use in breach of planning control, OR

Welwyn and Hatfield Council v SSCLG and Beesley 2010 Court of Appeal • The permitted use of the building was for agricultural storage. Its use as a dwelling is, in terms of s171B(2), a change of use in breach of planning control, OR • Upon completion the building had no use. Upon residential occupation there was a change of use.

Welwyn and Hatfield Council v SSCLG and Beesley 2010 Court of Appeal • The permitted use of the building was for agricultural storage. Its use as a dwelling is, in terms of s171B(2), a change of use in breach of planning control, OR • Upon completion the building had no use. Upon residential occupation there was a change of use. • The issue of deception was irrelevant as legislation has not provided for its employment.

Southside Farm

R (Sumner) v SSCLG 2010 Counsel for the appellant argued: • If the building was declared lawful, the use for which it was intended is also lawful, see s75(2) and (3) by analogy • Wilson (1963) • the use is ancillary to the building • s191(2) “also”

R (Sumner) v SSCLG 2010 Collins J said: • the 1990 Act makes a consistent distinction between a CLU and planning permission • see s336

R (Sumner) v SSCLG 2010 Collins J said: • the 1990 Act makes a consistent distinction between a CLU and planning permission • see s336 • the 1990 Act makes a consistent distinction between operational development and c of u

R (Sumner) v SSCLG 2010 Collins J said: • the 1990 Act makes a consistent distinction between a CLU and planning permission • see s336 • the 1990 Act makes a consistent distinction between operational development and c of u • see s171B

R (Sumner) v SSCLG 2010 Collins J said: • the 1990 Act makes a consistent distinction between a CLU and planning permission • see s336 • the 1990 Act makes a consistent distinction between operational development and c of u • see s171B • each is regarded as a separate basis for the need for planning permission

Conclusion

Conclusion How do we reconcile Fidler and Beesley on the issue of deception?

Conclusion How do we reconcile Fidler and Beesley on the issue of deception? How do we reconcile Beesley and Sumner on the issue of operations and use?

Conclusion How do we reconcile Fidler and Beesley on the issue of deception? How do we reconcile Beesley and Sumner on the issue of operations and use? We may not have to: both are headed for appeal

Come and find out

Come and find out Date: 11 January 2011

Come and find out Date: 11 January 2011 Venue: to be confirmed

Come and find out Date: 11 January 2011 Venue: to be confirmed Topics:

Come and find out Date: 11 January 2011 Venue: to be confirmed Topics: A review of 2010

Come and find out Date: 11 January 2011 Venue: to be confirmed Topics: A review of 2010 You decide

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Immunity from enforcement

by Graham Gover on Jun 05, 2010

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Immunity from enforcement — Presentation Transcript