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Another month, another immunity case. Another question ducked by the court?

Roderick Morton analyses an appeal against a decision of an inspector to dismiss the appellant's appeal against an enforcement notice issued by a council in respect of the unauthorised conversion of a property into two flats.

A house was converted a house to two flats without planning permission. More than 4 years later, the local planning authority (LPA) enforced against “use as two self-contained flats”, requiring cessation of that use and removal of some kitchens and bathrooms and dividing doors. Mr Bansal, the owner, appealed. He provided sufficient evidence of continuous use for 4 years in relation to the upper flat but insufficient evidence in relation to the ground floor flat. The inspector found that there was therefore insufficient evidence under ground (d) and the appeal was dismissed. Mr Bansal appealed.

Before the High Court, the appellant argued in Bansal v Secretary of State for Housing, Communities And Local Government & Anor [2021] EWHC 1604 (Admin) that the house had been converted to two flats. Use as a single house had ceased. S55(3) TCPA 1990 says that is a material change of use. Thereafter, the ground floor hadn’t changed to anything else so it must have been a flat. The inspector, said the appellant, had focused on occupation and not planning use. Planning use had not changed irrespective of whether the ground floor was occupied.

The inspector had found that the conversion to flats had taken place more than 4 years before the notice. But he found that continuous use thereafter had not been demonstrated. It was necessary to establish continuous use for both flats so the appeal failed.

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This, said the court, was the correct approach. Applying Thurrock and Swale and Maxwell Estates , “it is for the appellant to show that the material change of use to 2 flats took place at least 4 years before the issue of the enforcement notice, that use was continuous for 4 years thereafter and that the use was not subsequently lost”. While physical conversion (even without evidence of use) was a factor, it was only a factor in relation to the date of initial conversion, hence the decisions in Impey and Welwyn Hatfield. It was not relevant in relation to continuous use (as made clear in Swale). Continuous use needs to be proved by actual use; where there is no actual use (ignoring deminimis breaks), the council can’t enforce and immunity can’t accrue.

This is a scenario which is common in enforcement appeals. The court here came to the right conclusion on the case presented to it. In this case, the notice attacked use of a single planning unit as two flats. That carries a 4 year immunity period; failure to demonstrate continuous use of any one flat means failure on the whole.

But the more interesting question, the problem which comes up time and again in enforcement appeals, is the interaction of ground (d) with the planning unit. What is the immunity period applicable to two separate uses? How is it affected by the breach description chosen by the council? And what is the effect of Van Dyck?  

Van Dyck (“building” in s336 includes parts of a building so immunity applies to each part separately) was noted in this case. And there were, here, two separate flats in separate occupation. But the notice attacked the use of the whole building as a single planning unit and the allegation was not, it seems, challenged. Had it been, it would have been open to the inspector to amend the notice to uphold it on the ground floor flat while quashing it on the upper flat on grounds of immunity. It would even have been possible to quash the whole notice for getting the planning units wrong. Van Dyck was not even about planning units, just “part of a building”.  

It is a problem which comes up regularly with flats. It is even more acute where there are mixed residential uses. For example, in a building with an HMO and some flats, this judgment seems to confirm that an appellant would need to provide 10 years' continuous evidence if the notice attacks the building as a whole. That seems a slightly odd result. 

But it is a problem which, it seems, was not argued in this case. So we will need to wait a little longer for an answer.

Roderick Morton is a partner at Ivy Legal.

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