Immunity from enforcement

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

Graham Gover Solicitor

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


(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

Hoddington Farm Cottages
Timetable:

Timetable:

1950 to 1993 Agricultural occupiers

Timetable:


Jan 94 to Jun 97 Non-agricultural occupiers

Timetable:



Empty for extensive
Jul 97 to Jul 98
refurbishment, 2m marketing

Timetable:



Empty for extensive
Jul 97 to Jul 98

Jul 98 to May 99 Non-agricultural occupiers

Timetable:



Empty for extensive
Jul 97 to Jul 98


July 99 to 9 Mar 07 Marketing, non-ag occupiers

Timetable:



Empty for extensive
Jul 97 to Jul 98



10 Mar to 26 April Empty, ready for sale

Timetable:



Empty for extensive
Jul 97 to Jul 98



10 Mar to 26 April Empty, ready for sale

26 April 2007 CLEUD application

Basingstoke and Deane v SSCLG and
Stockdale 2009

Stockdale 2009

Two issues in the appeal:

Stockdale 2009

1. Was the condition now unlawful because the
basis of the circular (the development charge)
was repealed in 1954?

Stockdale 2009

2. Had the condition been breached continuously
for ten years?

Stockdale 2009

for ten years?
The court agreed with 1: there was no longer a
planning policy basis for the condition.

Stockdale 2009

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.

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.

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.

Stockdale 2009

De minimis breaches do not count e.g.
replacement lettings that take time to materialise.

Stockdale 2009


The 13 month gap did not interrupt the breach:

Stockdale 2009



• there was a significant period of breach before

Stockdale 2009



• it was a clear act in furtherance of the breach

Stockdale 2009



• 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.

The Inspector held:

Main house substantially
June 2002 completed and had been lived
in for some time before

The Inspector held:


Straw bales and tarpaulin
July 2006
removed

The Inspector held:


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:

• they were there for the purpose of concealment
and they were intended to be removed in time

The Inspector held:

• windows were created in the building for the
purpose of light and view

The Inspector held:

• 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
Timetable:

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

Timetable:

July 2002 Building completed

Timetable:


Mr and Mrs Beesley move in
August 2002 and live there continuously
until ...

Timetable:


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


The court held:


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 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.


• 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.


• 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.

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”


Collins J said:
• the 1990 Act makes a consistent distinction
between a CLU and planning permission
• see s336


Collins J said:
• see s336
between operational development and c of u


Collins J said:
• see s336
• see s171B


Collins J said:
• see s336
• see s171B
• each is regarded as a separate basis for the
need for planning permission

Conclusion

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

Conclusion

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

Conclusion

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

Date: 11 January 2011

Come and find out

Venue: to be confirmed

Come and find out

Topics:

Come and find out

Topics:
A review of 2010

Come and find out

Topics:
A review of 2010
You decide

Immunity from enforcement

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Editor's Notes