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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Fairstate Ltd, R (on the application of) v First Secretary of State & Anor [2004] EWHC 1807 (Admin) (07 July 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/1807.html Cite as: [2004] EWHC 1807 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		7th July 2004

MR JUSTICE SULLIVAN:

Introduction

1. This is an appeal under section 289(6) of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision of an Inspector appointed by the first respondent to determine the appellant's appeal against an enforcement notice issued by the second respondent on 18th June 2003 ("the notice"). The notice related to Flat 3 ("the Flat"), one of ten in a block of purpose-built apartments owned by the appellant at 22-23 Marylebone High Street, London W1. The notice alleged that there had been a change of use at the flat without planning permission from permanent residential accommodation to use for short-term letting purposes, i.e as temporary sleeping accommodation within the meaning of section 25 of the Greater London Council (General Powers) Act 1973, as amended ("the 1973 Act").
2. The appeal was confined to ground (d) in section 174(2) of the 1990 Act that, at the date the notice was issued, no enforcement action could be taken in respect of the alleged breach of planning control. This contention was based on section 171B of the 1990 Act, which provides that no enforcement action may be taken in respect of such a breach after the end of the period of ten years, beginning the date of the breach. The deemed planning appeal was not pursued. In his decision letter dated 22nd March 2004, the Inspector dismissed the appellant's ground (d) appeal and upheld the notice.

The 1973 Act

3. Section 25 of the 1973 Act is as follows:

"(1) For the purposes of section 22(1) of the Act of 1971, the use as temporary sleeping accommodation of any residential premises in Greater London involves material change of use of the premises and of each part thereof which is so used.

4. (2) In this section:

(a) 'use as temporary sleeping accommodation means use as sleeping accommodation which is occupied by the same person for less than 90 consecutive nights and which is provided (with or without other services) for a consideration arising either:

5. (i) by way of trade for money or money's worth; or

(ii) by reason of the employment of the occupant; whether or not the relationship of landlord and tenant is thereby created;

(b) 'residential premises' means a building, or any part of a building, which was previously used, or was designed or constructed for use, as one or more permanent residences."

6. Section 22(1) of the 1971 Act is now section 55(1) of the 1990 Act. As originally enacted, the period in section 25(2)(a) was 22 consecutive nights, a period of 90 consecutive nights was substituted by the Greater London Council (General Powers) Act 1983.

The Decision Letter

7. The appellant produced detailed records relating to the use of the flat. The Inspector recorded that the second respondent did not dispute the veracity or accuracy of those records. The Inspector set out his approach in paragraphs six and seven of the decision letter:

"6. In the light of the relevant legislation and the findings in Thurrock BC v SSETR & Holding CoA [2002], I consider that the starting point is to examine the records for the 10 year period from 18 June 2003, the date the notice was served, back to the 18 June 1993. An assessment should be made as to whether, on the balance of probability, the use for the purposes of short term letting (less than 90 days) commenced on or before 18 June 1993 and continued up to 18 June 2003, without any material change of use taking place in the meantime. For the appellant, however, it was asserted that simply looking back 10 years from the date of the notice was not enough. The argument advanced is that, based on Sections 171B(3) and 191(2) of the 1990 Act, no enforcement action could be taken by the Council if the time to take action had expired (i.e 10 years of continuous use had already occurred, including or after the 27 July 1992, the date that the legislation concerning lawful uses was enacted). Based on the legislative requirements and having regard to Thurrock and Panton and another v SSETR and Anr QB [1998], I consider that this approach is sound, provided that the use was in existence on the date the notice was issued and the 3 ways flowing from Panton that immunity can be lost (abandonment, formation of a new planning unit and a material change of use) do not apply. The period that the appellant relies on is 3 January 1989 to 2 January 1999.

"7. In terms of the 10 year period between 18/06/93 to 18/06/03, the council accepted that apart from 2 particular periods of occupation by a Mr I Jasim in the first half of 1995 and Miss R Kapoor in 1999, the appellant's record shows that all the occupiers were resident for less than 90 days, even if they had had more than one consecutive tenancy which when put together gave a total number of days. On this basis, I consider that I should focus on the periods of occupation of these 2 tenants and it is not necessary to look in detail at any others."

8. For present purposes, it is unnecessary to consider the occupation of the flat by Mr Jasim, because the Inspector concluded that his occupation did not break the pattern of short term letting. His conclusions in relation to Miss Kapoor's occupation are contained in paragraph ten of the decision letter, as follows:

"Turning to the two pertinent periods of occupation, as far as Miss Kapoor is concerned, the records show that she had six back-to-back tenancies starting on 15 February 1999 and continuing until 19 July 1999, a period of some 155 days, well in excess of 90 days. There is nothing to suggest that her occupation during that time was broken and the tenancies gave her the right to occupy the flat throughout that period. For the appellant, it was accepted that her occupation was continuous for a period exceeding 90 and rent (a 'consideration') was paid throughout. I find that, notwithstanding the nature of occupation up to that point, her occupation would have amounted to a significant break in any claim period of letting for less than 90 days. Consequently, when the short term letting resumed after her vacation in August 1999, this would have amounted to a fresh change of use for which there was no planning permission or Certificate of Lawful Use. The period of short term lettings from that time revealed in the records would only have been just under 4 years by the date of the issue of the notice and not 10 years as required by the legislation."

9. In paragraph 15, the Inspector said this:

"Bringing these points together, I find that during the period from 3 January 1999 to 2 January 1999, on the balance of probability, that the flat was likely to have been used throughout as temporary sleeping accommodation, as defined in the 1973 GLC Act. This being so, having regard to the position outlined in paragraph 6 above, this use at 3 January 1999 would have been lawful and immune from enforcement action. However, the evidence concerning Kapoor shows that since that time, in the first half of 1999, residential occupation of a more permanent nature occurred, before the use as temporary sleeping accommodation resumed up to the date of the service of the notice. I take the view that even if the Kapoor occupation did not amount to a material change of use in the meaning of Section 55 of the 1990 Act or Section 25 of the 1973 Act, that the resumption of use as temporary sleeping accommodation on 23 July 1999 (Mr Abu Setta) did. Hence the use was no longer lawful at that time and a further unbroken 10 year period had not passed up to the date of the service of the notice. So even if the approach of the appellant is adopted, rather than taking 10 years back from the date of the service of the notice, a material change of use requiring planning permission has still occurred within 10 years of the issue of the enforcement notice for which there is no immunity from enforcement action due to the sequence of events in question."

10. He therefore concluded that it was not too late for the second respondent to take enforcement action against the matters alleged in the enforcement notice, so the ground (d) appeal failed.

The Appellant's Submissions

11. On behalf of the appellant, Mr Lewis submitted that the Inspector's conclusion in paragraph 15, that the lawful use of the flat which had been acquired after ten years' use as temporary sleeping accommodation was lost as a result of a further period of short term occupation by Mr Setta in July 1999, was irrational and/or unlawful. The Inspector had accepted that, as at 3rd January 1999, the use of the flat for temporary sleeping accommodation was lawful, by virtue of the combined effect of sections 171B(3) and 191(2(a) of the 1990 Act. Once acquired, such use rights could be lost only if they were abandoned, if a new planning unit had been created or if there had been a material change of use (see the final sentence in paragraph six of the decision letter and Panton v SSETR and another [1999] 1 PLR 92, per Mr Christopher Lockhart-Mummery QC sitting as a deputy judge of the Queen's Bench Division at pages 99H to 100B):

"It is clear, therefore, that an immunity accrued under the previous statutory provisions was not prejudiced by the 1991 provisions. The Court of Appeal expressly proceeded on this basis in William Boyer (Transport) Ltd v Secretary of State for the Environment [1996] 1 PLR 103 at p107, and that position was accepted by Mr Albutt. (The same principles would apply in relation to a material change of use taking place before 1 July 1948.) Further, in accordance with long-established principles, such an accrued planning-use right could only be lost by operation of law in one of three ways: first, by abandonment; second, by a formation of a new planning unit; and third, by way of a further material change of use (whether by way of implementation of a further planning permission, or otherwise): Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132."

12. He submitted that the principle was applicable to an immunity acquired under the previous statutory provisions, but was equally applicable to an immunity acquired under the ten-year rolling programme provided for by section 171B(3). In the present case, it had not been suggested that the use of the flat as temporary sleeping accommodation had been abandoned and the planning unit had remained the same throughout. Crucially, the Inspector had not concluded that there had been a material change of use from temporary sleeping accommodation as a result of Miss Kapoor's occupation from 15th February to 19th July 1999.
13. Panton was considered by the Court of Appeal in Secretary of State for the Environment and Holding v Thurrock Borough Council [2002] JPL 1278. In that case, the Inspector had fallen into error because there had been no continuous use of the airfield for ten years, so no question of the abandonment of an immune and therefore lawful use arose. The Court of Appeal did, however, agree with the trial judge (Newman J) as to the rationale of the immunity provisions contained in the 1990 Act:

"I agree with the judge as to the rationale of the immunity provisions. If there is a planning objection to the erection of a building the LPA must take enforcement action within 4 years of completion or lose the chance of taking such action. If there is a planning objection to a use which has been instituted without the grant of planning permission then again the LPA must take enforcement action within the appropriate time limit, 10 years in the present case. If the new use continues throughout that period then the LPA have lost their chance. Their position is much the same as that of a landowner who lets the world regularly walk along a path over his land. There comes a time when he has lost his right to object."

14. Paragraph 25, Schiemann LJ.
15. Mr Lewis also referred to the speech of Lord Scarman in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment. The question in that case was whether a planning permission granted in 1950 had been abandoned. Between pages 143 to 145, Lord Scarman identified three classes of case from which it might have been inferred that a planning permission could be abandoned. He concluded that these three instances did not support the contention that a valid planning permission capable of being implemented could be abandoned. Mr Lewis submitted that a use which had been become immune from enforcement action under the ten year rolling provision in section 171(B), and therefore lawful, should be equated with a planning permission in this respect. He further submitted that, even if there was a material change of use from use X (which had become lawful by reason of having continued for ten years or more) to a materially different use Y, the landowner did not lose the right to revert to use X in the absence of evidence of abandonment. If an enforcement notice was served in such circumstances, then the recipient would be entitled to revert to use X by virtue of section 57(4) of the 1990 Act, which provides:

"Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use, for the purpose of which (in accordance with the provisions of this part of this Act) it could lawfully have been used if that development had not been carried out."

The Respondent's Submissions

16. On behalf of the first respondent, Mr Palmer (whose submissions were adopted by Miss Busch on behalf of the second respondent) submitted that the appellant's approach ignored the effect of section 25 of the 1973 Act. The effect of that section was that the change from non-temporary residential use by Miss Kapoor to use as temporary sleeping accommodation by Mr Setta was deemed to constitute a material change of use. Development requiring planning permission had therefore occurred and planning permission had not been obtained.
17. The effect of this material change of use was to extinguish any previous lawful user rights (see Panton above.) There was no dispute that whether or not the use by Miss Kapoor was a material change of use from temporary sleeping accommodation, there had been what the Inspector described in paragraph ten of the decision letter as a "significant break". There had then been a change of use from her use to a use for temporary sleeping accommodation. That change of use was deemed to be a material change of use by virtue of section 25.
18. He referred to two decisions dealing with section 25, City of Westminster v Secretary of State for the Environment and Dukegrade Ltd [1990] JPL 277 and Westminster City Council v Secretary of State for the Environment and Miller Developments Ltd [1992] JPL 24. Both of those decisions accurately described section 25 as a deeming provision. He acknowledged that, in certain respects, section 25 could produce artificial results, but the artifice was deliberate and reflected a clear legislative intention to protect the supply of permanent residential accommodation in Greater London (see R v Kensington and Chelsea Royal Borough Council Ex parte Lawrie Plantation Services Ltd [1999] 3 PLR 138, per Lord Clyde at page 142.)

Conclusions

19. I accept the respondent's submissions. The starting point is Panton. In that case, the Court was not concerned with the implications of section 25 of the 1973 Act. In a "normal" case to which section 25 does not apply, if there is a material change of use from use X which has continued for ten years and has therefore become immune from enforcement action and lawful to use Y, then a change back from use Y to use X will be a further material change of use requiring planning permission. That is why, in shorthand form, it can be said that the right to continue with the immune use will have been "lost." If the change of use from X to Y is not material then, in the normal course of events, there would equally be no material change of use from use Y back to use X. There would therefore, in those circumstances, be no development within the previous ten years on which any enforcement notice could bite.
20. However, in those cases to which section 25 applies, the position described above is modified if X is a use for temporary sleeping accommodation and Y is some other form of residential use. The change from use X to use Y may well not amount to a material change of use for planning purposes. Whether it is or is not will be a question of fact and degree in each case. Such questions will give rise to precisely the kind of detailed arguments and disputes that section 25 was designed to avoid.
21. Whether or not the change from use X to use Y amounts to a material change of use, the subsequent change from use Y back to use X is deemed to be a material change of use by virtue of the provisions of section 25. Thus there is a fresh change of use on which an enforcement notice can bite. It was not therefore necessary for the Inspector to decide whether the change to Miss Kapoor's occupation was a material change of use and he was correct to conclude that the change from her occupation to Mr Setta's use for temporary sleeping accommodation was a material change of use which was susceptible to enforcement notice action.
22. In my judgment, there is no conflict between that conclusion and the underlying purpose of the ten-year rolling programme for immunity, as explained in the Thurrock decision. For so long as a landowner continues to use his land for use X, which has become immune by virtue of having continued for ten years, the local planning authority will be unable to take enforcement action. However, the landowner cannot expect that immunity to continue if he ceases to use the land for use X and uses it for some other purpose, use Y, if a change back from use Y to use X is either deemed to be, or is as a matter of fact and degree, a further material change of use. While it is true that use for ten or more years is equated with use pursuant to a planning permission for the purposes of section 171(2) of the 1990 Act, it does not follow that a use which has become immune from enforcement action must be equated with a permitted use for all purposes under the 1990 Act.
23. In the Pioneer case, the House of Lords was considering the question whether or not a planning permission which was capable of implementation could be abandoned. It was concluded that such a permission could not be abandoned, but it is clear from the speech of Lord Scarman that he accepted that a use which had become immune from enforcement action could, in certain circumstances, be abandoned (see page 143B.)
24. Moreover, Mr Lewis at one stage accepted the proposition in Panton that a use which has become immune from enforcement action is capable of being abandoned. Thus it is plain that a use which has become immune and a use which has the benefit of a planning permission are not identical for all purposes under the 1990 Act. In Pioneer, particular emphasis was given to the overall statutory scheme. As Lord Scarman pointed out at page 140: "Planning control is the creature of statute."
25. He said, on page 141:

"As ever in the field of statute law, it is the duty of the Courts to give effect to the intention of Parliament as evinced by the statute or statutory code considered as a whole."

26. The statutory code considered as a whole included provisions relating to the grant of planning permission, which provided for consultation with the public and a decision by a public body, the local planning authority. On page 139, Lord Scarman drew particular attention to the fact that a planning permission, once granted, will be placed upon the planning register and will bind all those who are, or who become interested in, the relevant land. Lord Scarman made a point that if it was possible to abandon a planning permission, it would not be possible by inspection of the land to discover whether the permission had been abandoned and abandonment could not be discerned from inspection of the planning register.
27. He drew attention to the provisions in the Act which enable local planning authorities to make revocation orders in respect of planning permissions that are regarded as unsatisfactory in the light of changed planning circumstances. I accept that, to some extent, there is a parallel in the case of uses which have become immune from enforcement action, since a local planning authority can make a discontinuous order if it wishes to bring such uses to an end but, in other respects, the acquisition of immunity by ten years' use is very different from the very public grant of a planning permission. I therefore reject the submission that only abandonment or a change in the planning unit can bring a lawful (because immune) use to an end and conclude that such a use may be brought to an end if there is a change to some other use. As I have indicated, if that change is not material for planning purposes, then the resumption of the former immune use will equally not involve a material change of use and so there will be no further breach of planning control but if, by reason of section 25, the change from the new use back to the former use is deemed to be a material change of use, then there is a new material change of use, in respect of which an enforcement notice can be issued.
28. Lastly, I turn to the effect of section 57(4) of the 1990 Act. Strictly, this question does not arise, since it was not a matter which was raised before the Inspector. Moreover, since there was no ground (a) appeal and the deemed application was withdrawn the nature of the rights (if any) conferred by section 57(4) as a "baseline" was not relevant. However since section 57(4) was referred to in the submissions before me, I deal with it. I accept Mr Palmer's submission that the effect of section 57(4) is that if there is a change of use from a (lawful because immune) use X to use Y and an enforcement notice is issued in respect of use Y, then the landowner can revert to use X. If, however, the local planning authority do not enforce against use Y, whether because of an oversight or because there is no planning objection to use Y, if the owner then reverts of his own volition from use Y to use X, there is a material change of use (whether as a matter of fact and degree or as a result of the deeming provisions of section 25) and the local planning authority can serve a enforcement notice in respect of that use and the landowner, in those circumstances, cannot avail himself of the provisions of section 57(4). The position may seem anomalous, but that is the effect of the statutory provisions (see Young v Secretary of State for the Environment and Bexley London Borough Council [1983] 2 AC 662.) It is necessary to read only the holding from the headnote in that case:

"The effect of section 23(9) [of the 1971 Act] now section 57(4), following upon the service of an enforcement notice was that the only use that could be made of the land without obtaining fresh planning permission was use for which it could have been used immediately before the use complained of in the enforcement notice, provided that use was itself lawful, that in the present case ... "

29. In his speech, Lord Fraser made it plain that section 23(9)(now section 57(4)) did not enable resumption of the last lawful use, merely the last use, provided it was lawful. In the present case, the last use prior to the use complained of in the enforcement notice was Miss Kapoor's occupation for other than temporary sleeping accommodation. For these reasons, there was no error of law in the Inspector's approach and it follows that this appeal must be dismissed.
30. I should like to thank counsel for their very helpful submissions on a short but knotty point. Thank you all very much.
31. MR PALMER: My Lord, I have an application for the first Secretary of State's costs. There is a cost schedule your Lordship has --
32. MR JUSTICE SULLIVAN: I have, yes.
33. MR PALMER: -- in the sum of £5,986. The costs were arrived at in relation to an attendance at a hearing on the basis of an estimate of two and a half hours. There has been additional time in further travelling and waiting time this afternoon and I would ask your Lordship to increase the sum by one and a half hours at £90 per hour, which is £135.
34. MR JUSTICE SULLIVAN: It may be said that is my fault. I am not offering to pay for it, mind, but yes --
35. MR PALMER: I think it is a total of £6,121. The costs estimated are that sum.
36. MR JUSTICE SULLIVAN: What do you want to say about principle and detail, Mr Lewis?
37. MR LEWIS: As to principle, my Lord, there is nothing I can say. As to amount, I would draw your Lordship's attention to this point: that at the top of page two, for some reason someone charged out at £160 per hour has spent, we are told, 17.2 hours poring over the documents and your Lordship can see, so far as the appellant's documents are concerned, they run to 57 pages. Those include a duplicate version of the appeal decision letter and so on any view, my Lord, I would resist 17.2 hours' work.
38. MR JUSTICE SULLIVAN: Sometimes people really do have to ferret around because all sorts of allegations have been inspected but failed on the evidence -- or using a journal or checking with the Inspector and so on. Whilst this is certainly the sort of legal point that makes you scratch your head, whether you should scratch it for 17.2 hours is another matter. That is your point, is it not?
39. MR LEWIS: Indeed, my Lord. I would struggle to say that I spent 17.2 hours preparing for the enquiry, which lasted a day, on this point, albeit that we had to cite Thurrock and Panton. In the course of that, I had witnesses to cross-examine and speeches to make. In my respectful submission, the claim in respect of that sum totalling at whatever it is -- I think it does come to £2,752 -- is indefensible in the circumstances and I resist that, but other than that we have no other point at issue, particularly not on principle, of course.
40. MR JUSTICE SULLIVAN: They are clearly entitled to something as they did scratch their heads for a certain amount of time, although maybe not 17 hours.
41. MR PALMER: My Lord, certainly there was a certain amount of time to scratch one's head and scratch one's head at length, but also to draft a detailed and fully considered merit of advice. That is included in that sum and extends in this case to the provision of full advice to the planning inspectorate and, obviously, the deputy Prime Minister and that accounts for a large part of that sum, in addition to the one to which my learned friend has referred. My Lord, he referred to the sums claimed in the schedule of costs lodged on behalf of the appellant. I note that that produced a grand total of £9,710 but, my Lord, even if you were driven to the conclusion that the work in the documents was larger than the amount imagined, certainly the timescale has been shaved in other respects and the overall sum of just over £6,000 is not unreasonable in the circumstances.
42. MR JUSTICE SULLIVAN: Thank you very much. So far as costs are concerned, there is no doubt that the appellant should pay the first respondent's costs. Those costs should be summarily assessed. I can appreciate that the treasury solicitor does provide detailed minutes and advice for the inspectorate and for the department, but I think 17 hours on this particular one is possibly just slightly over the top. Bearing in mind that we have taken slightly more time than expected, I think that a fair figure for this case would be in the sum of £5,000. That is what I order.
43. MISS BUSCH: My Lord, I also have an application for costs, which I expect my learned friend will not object to in principle. You will, of course, be familiar with the Bolton case. My learned friend has brought copies down if need be, but the critical principle being that the second set of costs will not, as a rule, be awarded unless the second party in question demonstrates a separate issue or has an interest in acquiring separate representation. I do not say that counsel is in a position to make submissions as to separate issue; however, I do think that counsel have an interest in circumstances requiring separate representation and the basis for that is that the Secretary of State's interest is in upholding the decisions of planning inspectors, insofar as they are lawful. The council's immediate interest is in the correct interpretation of section 25 itself and I took your Lordship briefly to the evidence in the form of the witness statement of Mr Nixon, that the council's policy is that: (1) it tampered, so to speak, with section 25 and it also evinced the critical importance to the council of the interpretation of the section 25. That fact is also testified to by the fact that, as you have seen from the cases referred to today, Westminster appeared in two of the main authorities concerning the interpretation of this provision. In my submission, the council does have a separate interest which not only entitles it to attend, but which requires it to in the administration of its duties, with respect to housing in Westminster City. On that basis, I would ask for costs.
44. MR JUSTICE SULLIVAN: Thank you very much. I do not need to trouble you, thank you, Mr Lewis. I quite understand Westminster does have a considerable interest in the operation of section 25, but I am not persuaded that that interest justifies making the appellant pay the cost of separate representation. It does seem to me that this was a case where there was only one issue, which was the correct interpretation of section 25 and it was plain that the Secretary of State was wrong on the council's direction. For those reasons, I do not award two lots of costs.
45. It is a second appeal --
46. MR LEWIS: I was going to flag that up.
47. MR JUSTICE SULLIVAN: Not because you do not think you have reasonable prospects, but you are going to go off to the Court of Appeal and try and persuade them --
48. MR LEWIS: I have to ask them, my Lord, not your Lordship.
49. MR JUSTICE SULLIVAN: Thank you very much indeed.