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Our Ref: PT/ISL002/0001 www.templebright.com Your Ref:
Islington and Shoreditch Housing Association Limited 102 Blackstock Road London N4 2DR
For the attention of: John Frost
9 August 2018
Dear John
2 Blackstock Mews – Application for a Lawful Development Certificate
You have asked Temple Bright to advise Islington and Shoreditch Housing Association Limited (ISHA) on the correct legal approach for how an application for a certificate of lawfulness should be considered.
ISHA applied to the London Borough of Islington for a Certificate of Lawfulness to conclusively presume that 2 Blackstock Mews is a residential dwelling within Use Class C3 of the Use Classes Order 1987 (reference P2017/4676/COL). This was refused on 24 January 2018 on the basis that there was insufficient evidence to establish that the property has been in use as a self-contained residential unit for a continuous period of 4 years prior to the date of the application.
ISHA intend to re-apply but wish to agree with the Council how such an application should be approached. In particular the question has arisen whether the property is required to be in active use for all four years preceding the date of application. The short answer is that the property does not need to be in active use provided the planning right to use the property as a single dwelling house has been accrued and the property remains as a single dwelling house.
Statutory Provisions
It is useful to set out the statutory provisions and the various parts of the Town and Country Planning Act 1990 (as amended) that are relevant:
1. Planning permission is required for the carrying out of development : s. 57(1). 2. The making of a material change in the use of land is development : s.55(1). Carrying out development without the required planning permission constitutes a breach of planning control 3. Section 191(2) tells one what is meant by a lawful use. It provides: “For the purposes of this Act uses and operations are lawful at any time if — (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason)…” 4. By section 171B(2) : (b) “Where there has been a breach of planning control consisting in the change of use of any building for 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.”
Temple Bright LLP is authorised and regulated by the Solicitors Regulation Authority. It is a limited liability partnership (number OC352276) registered in England and Wales. Its registered office is at the above Bristol address where a list of members is available for inspection. The term “partner” includes members, employees and individual or corporate consultants (and their principals). We do not accept service of documents (whether in proceedings or otherwise) by email or fax, unless one of our partners expressly confirms to the contrary in writing. The Facts
It is understood that there has been residential use of the property as a single dwelling house since approximately 2006 and there is some evidence to demonstrate this. It is understood that Sasha Johnson of ISHA has personal knowledge of the use of the property since February 2011 and is willing to sign a statutory declaration to that effect. ISHA has strong evidence that the property has actively been used as residential dwelling house from February 2011 to July 2017 without interruption. The property was used at all times by tenants occupying for residential use only. It is understood that since July 2017 there has been no tenant occupying the property but there has been no physical change to the property, the property has not been put to another use and ISHA has no intention for the property to be used other than for it to continue as a residential dwelling house.
No enforcement notice has been served.
Applying the Facts to the Statutory Provisions
Planning permission was required to change the use of the property to that of a residential dwelling. This breach of planning control probably occurred in 2006 and Sasha Johnson of ISHA has personal knowledge of the breach since February 2011. Under section 171B(2)(b) no enforcement action can be taken after the end of the period of four years beginning with the date of the breach. This is either 2010 or February 2015 but in any event there is evidence to demonstrate that the planning right to use the property as a residential dwelling house has arisen. The consequence is that the Council can no longer lawfully take enforcement action against the breach. In accordance with section 191(2) the use of the property as a single dwelling house is therefore lawful. It should be noted that the lawfulness is automatic and does not depend on the granting of a certificate of lawfulness.
Council’s approach to date
We understand that the Council has stated that in order for a Certificate of Lawfulness to be granted there must be continuous use of the property as a single dwelling house for four years preceding the date of application for the certificate.
This is correct.
However the Council interprets this to mean that the property must be in active use for all of those four years immediately preceding the application.
This is wrong.
Why the Council is wrong
The legally correct question for the Council to ask is whether the property had been used as a single dwelling throughout the whole of the four years preceding the date of application, so that they could at any time during that period have taken the enforcement action1.
In this instance the planning right to use the property as a single dwelling house has been accrued in either 2010 or 2015 and therefore the Council cannot take enforcement action at any time in the four years preceding when the application is to be made.
The Council is required to query whether the property has been actively used for a continuous period but this is during the period when the planning right is accrued i.e. when there is a breach of planning control. The reason for the continuous active use is not set out in statute
1 Swale Borough Council v First Secretary of State, Roger Lee [2005] EWCA Civ 1568, para [25] but is explained by Newman J, in his judgment, as summarised in the Court of Appeal by Schiemann LJ at paragraph 15 at first instance in a judgment approved by the Court of Appeal in a case called Secretary of State for the Environment v Thurrock Borough Council [2002] EWCA Civ 226. It was reasoned as follows:
“The rationale of the immunity is that throughout the relevant period of unlawful use, the LPA, although having the opportunity to take enforcement action, has failed to take any action and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. If at any time during the relevant period the LPA would not have been able to take enforcement proceedings in respect of a breach (for example, because no breach was taking place) then any such period cannot count towards the rolling period of years which gives rise to the immunity. It was for the land owner to show that at any time during the relevant period enforcement action could have been taken.” [our underlining for emphasis]
In this instance, there is very clear and strong evidence that the property was actively used as a single dwellinghouse during the entire relevant period of unlawful use (i.e. the 4 years between February 2011 and February 2015). The period for taking enforcement action is over and the planning right has been accrued. It is now a lawful use.
It should be noted that this is a settled area of law and there are numerous cases that have confirmed this approach in addition to Swale and Thurrock, such as Panton & Farmer v Secretary of State for the Environment, Transport and the Regions and Vale of White Horse DC [1999] JPL 461.
Confusion arises (and this may be in the case of the Council) due to use of the word “continuous” in many of the relevant court cases. In different situations it is taken to mean an active use and at other times that there has been no further change of use. The former occurs in several of the relevant cases where is uncertainty as to whether the planning right has been accrued or not (i.e. there may be gaps in evidence during the relevant period of unlawful use) and it is said that the use was interrupted whilst the planning right was being accrued, thereby re-starting the clock. This is not the case here as there is strong evidence that the planning right has been accrued and that use continues whether it is occupied or not.
Once the planning right is accrued the Panton case summarises the position neatly:
“in accordance with long established principles, such an accrued planning right could only be lost in one of three ways, by operation of law. First, by abandonment, secondly by the formation of a new planning unit, and thirdly, by way of a material change of use”
The right for the property was either accrued in 2010 or 2015 and there is no evidence to suggest that right has been abandoned2, a new planning unit formed or a further material change of use. The property remains as a single dwelling house and continues to benefit from that use. There is not a requirement for it to be actively occupied once the use became lawful.
Conclusion
There is strong and compelling evidence that the planning right to use the property as a residential dwelling house has been accrued. The correct legal test to apply once a planning
2 It should be clear to the Council that the use has not been abandoned but for completeness the test is set out in the case of the Trustees of the Castell-Y-Mynach v Secretary of State for Wales and Taff Ely Borough Council [1985] JPL 40. Nolan J recorded that it was agreed that four factors should be considered in deciding whether or not there had been abandonment. They were: “(a) physical condition of the building; (b) the period of non-use; (c) whether there had been any other use; and (d) evidence regarding the owner's intentions.” right has accrued is to then consider whether the lawful use has been abandoned or replaced by a different use. There is no evidence to suggest this and the Council should be satisfied that at the date of application for the certificate of lawfulness the use is lawful and the certificate should be issued provided the Council follow the correct approach.
Should the Council continue to follow the wrong legal approach and refuse the application, then you would likely to be successful for appeal and if they continued to make the same argument at appeal, you would have a strong argument for costs to be awarded in your favour.
Yours faithfully
Temple Bright LLP London office E: [email protected]
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