Planning appeal: Enforcement notice


Change of use - breach of planning control - enforcement action - temporary sleeping accommodation - time-limit for taking enforcement action - whether inspector's decision to dismiss enforcement appeal lawful - appeal dismissed



Fairstate Ltd v First Secretary of State and another: QBD (Mr Justice Sullivan): 7 July 2004



The appellant company owned a flat in London that had been used continuously from 3 January 1989 to 2 January 1999 as temporary sleeping accommodation within the meaning of section 25 of the Greater London Council (General Powers) Act 1973.



However, from 15 February to 10 July 1999 (155 days), the flat had been occupied by K, on a series of back-to-back tenancies. Then, on 23 July 1999, the use of the flat reverted to that of temporary sleeping accommodation.


In June 2003, the second respondent council issued an enforcement notice. This alleged that the use of the flat for short-term lettings was in breach of planning control and constituted a material change of use, from its lawful use as permanent accommodation, by virtue of section 25 of the 1973 Act. The company appealed, under section 289 of the Town and Country Planning Act 1990, against the planning enforcement notice.


The appellant contended, under section 174(2)(d) of the 1990 Act, that, at the date on which the notice was issued, enforcement action could not be taken, because, under section 171B of the Act, any such action had to be taken within the ten-year period beginning from the date of the breach.


The inspector concluded that as at 3 January 1999, the use as temporary sleeping accommodation had been lawful and was therefore immune from enforcement action. However, the 155-day tenancy represented a significant break in any period of letting for less than 90 days, constituting residential occupation of a more permanent nature. The resumption of the short-term letting on 23 July 1999 constituted a material change of use within section 25. This, being development without planning permission, amounted to a breach of planning control.


Meyric Lewis (instructed by Lyndales, London) for the appellant; Robert Palmer (instructed by the Treasury Solicitor) for the first respondent; Lisa Busch (instructed by Westminster City Council) for the second respondents.


Held: The appeal was dismissed. The inspector was right to conclude that, on 23 July 1999, the use of the premises had changed from use falling outside the definition of 'temporary sleeping accommodation' in section 25 to a use falling within that definition.



As a matter of law, lawful use rights would be lost following a subsequent material change of use. The effect of section 25 was that what might otherwise not constitute a material change of use could be deemed to have constituted such a change and, as a result, 'development', which required planning permission by virtue of section 57 of the 1990 Act. The material change in use also acted to extinguish any previously existing lawful use rights by operation of law (Panton v Secretary of State for the Environment, Transport and Regions [1999] 1 PLR 92 considered).



Section 25 was of broad application; there was no justification for limiting its effect so that it ceased to apply where a lawful use as temporary sleeping accommodation had been established, at any date and for any particular residential premises, regardless of how often the use of the premises changed to or from that of temporary sleeping accommodation.



Town and country planning: planning permission



Development - flood plain - local development plan - inspector's approach - whether inspector required to take account of existing flood defences - application granted



Thomas Bates & Son Ltd v First Secretary of State and another: QBD (Mr Justice Harrison): 13 July 2004


The claimant firm owned a site of approximately 6.6ha. It applied, together with a developer, for planning permission to remove 119 seasonal, wooden weekend chalets and to construct 124 dwellings in their place, with public open space and landscaping. The site was situated close to an estuary, which was bounded to the south by sea-wall flood defences, to the north by a canal and to the east by lakes. The indicative flood-plain map in PPG 25 designated the land as a zone 3 site. The proposed scheme included flood-mitigation measures that were subsequently agreed in principle with the Environment Agency, which had withdrawn its initial holding objection.


The planning application was refused by the second defendants and the claimant appealed pursuant to section 78 of the Town and Country Planning Act 1990 to the first defendant. Following a public inquiry, the inspector dismissed the appeal, but the same inspector reconsidered the matter solely on the issue of flooding. The appeal was dismissed on the basis that the proposed residential development would be subject to an unacceptable risk of tidal flooding. That decision turned solely on the application of the sequential test set out in paragraphs 30 and 31 and table 1 of PPG 25: development and flood risk.


The claimant applied to quash the decision pursuant to section 288 of the 1990 Act. It contended, among other things, that the inspector had failed to take into account the actual risk of flooding and the existing flood defences and had applied the sequential test solely on the basis of the flood plain map.


Anthony Dinkin QC (instructed by Holmes & Hill, Braintree) for the claimant; Philip Coppel (instructed by the Treasury Solicitor) for the first defendant; the second defendants did not appear and were not represented.


Held: The application was granted. The inspector had properly applied the sequential test. Paragraph 30 and table 1 of PPG 25 required a precautionary approach when considering proposals for development in or affecting flood-risk areas. Priority had to be given to sites 'in descending order to the flood zones set out in table 1'.


Where the development site fell within zone 3, the decision maker had to demonstrate that there was, within the local plan area, no reasonable alternative in a lower-risk category, consistent with other sustainable development objectives. Existing flood defences would become relevant only in the event that no reasonable alternatives were available. A zone 3 site would be preferred over another if it had flood defences.


However, on the evidence, the inspector had erred in law by failing to consider the existing sea defences for purposes other than the sequential test relating to the sustainability of the site. A decision-maker was required to take a balanced, flexible approach and to account for the existence of flood defences as a material consideration when carrying out the overall balancing exercise.


Furthermore, the inspector had concluded that the site was highly susceptible to tidal flooding, without taking into account material evidence in the form of a flood-risk assessment; this had not been challenged by the second defendants. He had also failed to have regard to the unchallenged expert evidence before him as to the adequacy of existing defences. In the circumstances, the appeal would be quashed.