Unoccupied properties and immunity from enforcement action

A London borough recently succeeded in an important High Court challenge to the Secretary of State’s approach to immunity from enforcement action. Charles Streeten explains why.

The London Borough of Islington has overturned a planning Inspector’s finding that development was immune from enforcement action in the High Court.

Lang J has held, in Islington v Secretary of State for Housing Communities and Local Government [2019] EWHC 2691 (Admin), that an Inspector misdirected himself in law on the question of whether land at 85 Newington Green Road, Islington, had been used actively as a residential property for a continuous period of four years and was immune for enforcement action under section 171B of the Town and Country Planning Act 1990.

The Claim raised an important point of law, namely how decision-makers should approach periods when a property is unoccupied, for example because it is being renovated.

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At the enforcement inquiry, the developer had accepted in cross-examination that the property had been refurbished between November 2013 and February 2014 and that during that time the property was uninhabitable, it had been “a shell”, “everything was gutted”, and (in the witness’s view) it was “not possible to take enforcement action”.

However, the developer relied on the decision in Gravesham BC v Secretary of State for Environment (1984) 47 P & CR 142, which is referred to in the Planning Encyclopaedia as whether a planning unit is being used as a single dwellinghouse, for the principle that “even if a property cannot be occupied because it is flooded, or is undergoing extensive repair, it is still a dwelling-house”.

In addition, the developer relied upon the Divisional Court in Impey v Secretary of State for the Environment (1984) 47 P & CR 157 and the Supreme Court in Welwyn Hatfield BC v Secretary of State for Communities and Local Government [2011] 2 AC 304 for the proposition that when considering whether it is right to describe a house as being used as a dwelling house the decision-maker should take a broader and longer term view, including periods during which works are undertaken.

The Inspector accepted the developer’s submissions and, on that basis, distinguished Thurrock Borough Council v Secretary of State for the Environment [2002] EWCA Civ 226.

The Secretary of State defended the decision with reference to the same cases in the High Court. However, Lang J rejected the Inspector’s approach. She affirmed that the decisions in Thurrock and Swale v Borough Council v Secretary of State for the Environment [2005] EWCA Civ 1568 determine of the correct approach. She accepted Islington’s submission that Gravesham was directed to a different question, namely, determining what is a dwelling house, not determining whether there has been a continuous period of use as a dwelling house. Similarly, she accepted that Welwyn and Impey were both concerned with an initial change of use, rather than an interruption in continuous use and that Welwyn, in particular, concerned a different factual and legal issue; operational development carried out to create a dwelling house, as opposed to cases in which the use of a building was changed to use as a dwelling house.

The Court therefore held that the Inspector had erred in law. In doing so Lang J pointed to the passage in Swale, where Keene LJ held that a building in which residential use had ceased, but the owner intended to resume residential use at a later date, was not in active residential use, and said,

“the same reasoning could apply in circumstances where a building has been stripped down to a shell unit, and the unauthorised residential use and breach of planning control had ceased, and so could not be enforced against by the planning authority during that period, even if the owner intended to resume residential use at a later date.”

This guidance is important for local authorities seeking to resist appeals in circumstances where a property has been unoccupied because of renovations during the relevant period for taking enforcement action.

Charles Streeten is a barrister at Francis Taylor Building. He acted for the successful Appellant, the London Borough of Islington, instructed by Laura Avery of Islington Council Legal Services.

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