# Status: Positive Or Neutral Judicial Treatment Swale Borough Council V First Secretary Of State, Roger Lee

C1/2005/0703
Court of Appeal (Civil Division)
17 November 2005

# [2005] Ewca Civ 1568 2005 Wl 3464407

Before: Lord Justice Chadwick Lord Justice Sedley Lord Justice Keene Thursday, 17th November 2005
On Appeal from the High Court Administrative Court List

## Representation

Mr J Findlay (instructed by Sharpe Pritchard ) appeared on behalf of the Appellant. Mr P Coppel (instructed by the Treasury Solicitor ) appeared on behalf of the First Respondent. Mr R Green (instructed by Clarke Kiernan ) appeared on behalf of the Second Respondent.

## Judgment

Lord Justice Keene:
1 This appeal is concerned with the lawful use of a building located at the edge of the village of Newnham in Kent. The building itself has a somewhat chequered history. It seems originally to have been a barn used for agricultural storage and other storage, but over the years various works have been done to it including the incorporation into it of two mobile homes. It is, according to the Planning Inspector's decision, a timber clad single storey building with a fixed roof. There are - and it is of some importance - a number of other buildings also on the site. The site as a whole is located in an area of outstanding natural beauty and a special landscape area. There is no dispute that the appeal building is now in residential use. 2 On 6th March 2001 the present owner, Mr Lee, applied for a certificate of lawful use under section 191 of the Town and Country Planning Act 1990 ("the 1990 Act"). The use specified in the application was residential use. The application was refused by the appellant, which is the local planning authority for the area, and an appeal against that refusal was dismissed by a Planning Inspector. The appellant Council then served an enforcement notice in respect of various building operations which had been carried out to the appeal building. 3 However, in August 2002, the appeal decision by the Inspector was quashed in the High Court, it being conceded by the First Secretary of State that the decision was flawed. So the appeal against the refusal of the certificate went back for redetermination. It was heard along with Mr Lee's appeal against the enforcement notice at a second inquiry by a new Inspector. He dismissed both appeals but his decisions were subsequently quashed in the High Court. Thus, there took place a third inquiry before yet another Inspector. This time Mr Lee succeeded. In his decision letter dated 10th September 2004 the Inspector allowed both appeals. 4 The outcome of the enforcement notice appeal turned on the result of the other appeal. The Inspector granted a certificate of lawful use for "the residential use of a barn". Having made that decision, he decided to allow the enforcement notice appeal solely on ground (a) in section 174(2) of the 1990 Act; that is to say on its planning merits. It is quite clear that central to those merits was his decision that the building had a lawful residential use.

5 The planning authority challenges those decisions and it is not in dispute that the challenge to the enforcement notice decision turns on the success or failure of the challenge to the decision about the certificate of lawful use. The challenge is brought under section 288 of the 1990 Act on the basis that the Inspector's decisions were, in the words of section 288(1)(b) , "not within the powers of this Act". That, it is well established, brings into play all the normal principles of judicial review. The Council failed to persuade Evans-Lombe J that the Inspector had erred in his September 2004 decision, but it now appeals to this court. 6 Section 191(2) tells one what is meant by a lawful use. It provides:
"For the purposes of this Act uses and operations are lawful at any time if —
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."
There is no suggestion in the present case that paragraph (b) has any application. Consequently, the issue that the Inspector had to determine was whether enforcement action could be taken against the residential use of the building, that issue to be judged as at the date of the application for the certificate: see *Nicholson v Secretary of State for the Environment [1998] 76 PCR 191* . 7 The basis on which the Inspector decided that enforcement action could not be taken was that residential use was then immune from such action because the time for enforcement action had expired. By section 171B(2) :
"Where there has been a breach of planning control consisting in the change of use of any building for use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach."
In all other cases the material change of use must have taken place at least ten years before the crucial date if immunity from enforcement action is to be achieved. Where the change of use is to use as single dwelling house, Parliament has prescribed a four year period. But whether one is concerned with a ten year user or a four year user, the same principles apply. If the necessary period of user can be shown, then the land or building is conventionally said to enjoy established use rights, probably now more accurately described as lawful use rights. 8 There is no dispute that, as a matter of law, Mr Lee had to show not only that the change of use to residential use had occurred four years or more before 6th March 2001, but also that residential use had continued throughout that four year period. The position is accurately described by Newman J at first instance in a judgment approved by this court on appeal in a case called Secretary of State for the Environment v Thurrock Borough Council [2002] EWCA Civ 226, [2002] JPL 1278 . The Planning Inspector in that case had decided that there was no need to demonstrate that the use had been in continuous existence during the requisite period (in that instance a period of ten years) saying:
"Unless there has been a clear cut change in planning circumstances such as a grant of planning permission for an alternative use, the introduction of another use incompatible with the original use or an indication of a deliberate intention to abandon the original use, then the use will survive throughout the ten years."
9 Newman J, in his judgment, as summarised in the Court of Appeal by Schiemann LJ at paragraph 15, had reasoned as follows:
"The rationale of the immunity is that throughout the relevant period of unlawful use, the LPA, although having the opportunity to take enforcement action, has failed to take any action and consequently it would be unfair and/or could be regarded as unnecessary to permit enforcement. If at any time during the relevant period the LPA would not have been able to take enforcement proceedings in respect of a breach (for example, because no breach was taking place) then any such period cannot count towards the rolling period of years which gives rise to the immunity. It was for the land owner to show that at any time during the relevant period enforcement action could have been taken."
Schiemann LJ expressly agreed with those propositions. He noted at paragraph 24 of his judgment that an enforcement notice requires the breach of planning control to be remedied, but if the new activity ceases the breach will be regarded as having been remedied. Moreover, he emphasised that the concept of abandonment which had been central to the Inspector's reasoning had evolved in respect of established use rights (that is to say rights which have already been established) and not in respect of a use, the continuity and lawfulness of which was in issue: see paragraph 26. 10 Chadwick LJ agreed that the Inspector had needed to ask whether the use in question had been continuous during the period and he too rejected the Inspector's approach of asking whether the use, having been commenced, had subsequently been abandoned: see paragraph 56. At the end of that same paragraph Chadwick LJ rejected the proposition that:
"… there was some presumption of continuance in planning law in respect of a use which had commenced as a result of a material change of use but which had ceased to be an active use before any accrued planning right had arisen."
Sir Christopher Staughton agreed. 11 With all of those statements by Schiemann LJ and Chadwick LJ in the *Thurrock* case, I respectfully agree. I do not understand them to be challenged by any party to this appeal. The issue at the heart of the present case is whether this Inspector adopted the correct approach towards the issue of whether there had been four years continuous residential use prior to 6th March 2001. 12 That inevitably takes one to the material parts of his decision letter. The Inspector found that residential use of this building had begun during the occupation by a Mr Colby, that being between about March 1995 and February 1996 when Mr Colby had ceased to own the property. The Inspector also found that it was in full-time residential occupation from the year 2000 onwards. Neither of those findings is challenged. It is his approach to the intervening period which is the basis of the Council's case on this appeal that the decision is flawed. What, of course, the Inspector had to focus on was the period from 6th March 1997 to 6th March 2001. 13 The evidence at the inquiry of Mr Lee himself was that he had bought the site in 1996, did not move in straight away but visited regularly to do improvement works. In the first part of 1997, Mr Lee lived partly on the site (as distinct, it seems, from the barn) and partly in a house in Maidstone. From late summer 1997 the site (again one notes the word) became his only home. Someone helping with work on the barn, a Mr Bunce, moved to the site in 1998, living partly in the barn and partly in a freestanding mobile home. Between September 1998 and May 1999, Mr Lee was legally required to live at Maidstone but after May 1999 he lived at the site, sometimes in the barn, sometimes in the freestanding mobile home. 14 The important passages in the decision which set out the Inspector's findings and reasoning are as follows:
"(21) Mr Lee acquired the site in 1996 but did not live in the building straight away. Indeed, for two or three years the mobile home on the site and the barn appeared to have provided residential accommodation for several people at various times, sometimes both being occupied and occasionally neither. This erratic pattern of use probably accounts for the various observations of the site recorded by the Council, and possibly the failure of the appellant's agent to refer to residential use in planning applications and letters during this period. However, once initial repairs were carried out the barn appeared to have been fitted and available for residential use from then onwards. The Council acknowledges a residential use from 2000 to the present day. There is no substantial evidence that since Mr Colby's occupation the barn was used for any purpose other than residential, except from time to time for minor storage connected with the use of the site as a whole. (22) I have taken into account Miss Champion's evidence and the lack of reference to the residential use in some planning applications and correspondence. However, during part of the relevant period, the appellant had a difficult and complicated personal life and I accept that these factors affected both his use of the site and the control that he was able to apply to the work being carried out there. I have no doubt that the barn was in full time residential occupation 1995/6 and again from 2000. In the period 1997 to 1999 the evidence indicates substantial work on the barn to complete its conversion for residential purposes, as well as on the remainder of the site. The appellant and several other people were involved in this work and frequently slept in the barn for substantial periods. I am aware of no evidence of any intention to abandon the residential use of the barn. Indeed, the main intention appears to have been to improve it to allow for full-time occupation as the appellant's home. (23) I have borne in mind the meaning of residential use described in paragraphs 18 and 19 above, and the failure to occupy a building for a period with no other reason being introduced does not often mean that residential use has ceased. I conclude on the balance of probability that residential use of the barn as a single dwelling house began more than four years prior to the date of submission of the LBC application and has continued since then without significant break."
In those passages, the reference to the appellant is, of course, a reference to Mr Lee. As a result of that process of reasoning the Inspector allowed the appeals. 15 The Council now contends that these passages show that the Inspector erred in law. He was wrong, it is said, to use the concept of abandonment of a use and he took into account immaterial considerations by using that concept and by relying on the fact that no other use had been introduced. Mr Findlay, on behalf of the appellant, emphasises what was said in the Thurrock case about abandonment being a concept relevant to already established use rights, not to whether there had been continuity of use. The same is true of whether or not an alternative use has been introduced. The only proper question, it is submitted, is whether the building was in continuous use for residential purposes throughout the period, so that the Council could have served an enforcement notice at any time during the four years. 16 The Council argues that the judge below was wrong to distinguish the use in the Thurrock case, which was the use of land as an airfield, from the use of a building as a dwelling. In both cases, says Mr Findlay, there has to be activity for the use to exist. If there are long periods of absence from the building, no activity and hence no use is continuing. That was the case here, he submits. The mere presence of personal effects and the connection of services such as water and electricity would not suffice, especially in a building which was not physically a dwelling house. Nor is it enough, as the Inspector appears to have thought, for the building to have been occupied "for substantial periods". 17 The Inspector's statement at paragraph 23 that "failure to occupy a building for a period with no other use being introduced does not often mean that residential use has ceased" is criticised by the Council. Mr Findlay emphasises the evidence that Mr Lee was not himself in occupation for the eight months between September 1998 and May 1999. He also referred to evidence called on behalf of Mr Lee from a Miss Champion that the barn was not lived in between Christmas 1997, when she first viewed it, and May 1999. It was not occupied in 1998, she said. The Inspector does not reject her evidence but merely refers to Mr Lee's difficult personal life. That leads Mr Findlay into a further submission, namely that the Inspector's finding was a perverse one. He also argues that it shows that the Inspector was over-influenced by the concept of abandonment. 18 Finally, it is submitted by the appellant Council that, put at its lowest, the Inspector's reasoning was inadequate because one cannot discern from his decision that he had adopted the legally correct approach. In that context, reliance is placed upon the well-known decision in South Bucks District Council v Porter No.2 [2004] UKHL 33, [2004] 1 WLR 1953 for the proposition that the reasoning must not give rise to a substantial doubt as to whether the decision-maker has erred in law. Here, it is said, one cannot see that the Inspector applied his mind to whether the building was being used in March 1997 and the following months and years for residential purposes. 19 For the Secretary of State, Mr Coppel emphasises that the Inspector found that the residential use began more than four years before the relevant date "and has continued since then without significant break". The Inspector was not applying any presumption of continuity and, it is said, was not using the concept of abandonment except in order to reject something which would have been fatal to a four year user. 20 Furthermore, argues Mr Coppel, some uses of land involve more fluctuations in activity than others. An airport use will see little or no fluctuation in the activity taking place, whereas a dwelling house use is likely to involve periods where a building is not actually being occupied; for example, at weekends or holidays. That is what Evans-Lombe J was emphasising in his judgment below. It is contended that the presence of furniture and personal effects is relevant to the question of use. Some reliance is placed by Mr Coppel in his written skeleton on cases dealing with the seasonal use of land, such as Webber v The Minister of Housing and Local Government [1967] 3 AER 981 . 21 It is accepted on behalf of the Secretary of State that the critical period of time is 6th March 1997 to 6th March 2001. Mr Coppel emphasises that one is not concerned solely with occupation by Mr Lee: occupation by others is also relevant, and it is said that on the evidence there were confused living arrangements with various people coming and going. 22 On behalf of Mr Lee it is submitted that the Inspector's findings were consistent, both with the evidence and with the approach endorsed in the *Thurrock* case. It is, says Mr Green on behalf of Mr Lee, a question of fact whether a building is being used as a dwelling house. He draws attention also to a passage in Schiemann LJ's judgment in the *Thurrock* case at paragraph 28 which reads as follows:
"I accept Mr Corner's point that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on - because it is the weekend or the factory's summer holiday, for instance. The land would still be properly described as being used for the objectionable activity. However, I would reject Mr Hockman's submission that enforcement action can be taken once a new activity which resulted from the material change in the use of land has permanently ceased. I accept that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity. These are matters of judgment for others."
23 Effectively, says Mr Green, the Inspector in the present case found that the residential use had not permanently ceased during the critical period. The judge below was right to distinguish between a cessation of use on the one hand and an absence of the occupier for a time, such as for the purpose of a holiday. Mr Green argues that the absence of an intention to abandon residential use was relevant because, had such an intention existed, it would have negated continuity of such use. 24 As to the reasons challenge, both respondents submit that the Inspector's decision letter, when read as a whole, contained adequate and sufficiently clear reasons. 25 I accept that whether a building is, or was, being used for a particular purpose at a particular time or times is largely a question of fact. But it is not, in the planning law context, wholly such. It is necessary, as the *Thurrock* decision demonstrates, for the decision-maker to adopt the proper approach as a matter of law to his decision on that question. It is not always an easy question to answer. But I am in no doubt that the legally correct question for the Inspector here to have asked was whether this building had been used as a single dwelling throughout the whole of the four years preceding 6th March 2001, so that the planning authority could at any time during that period have taken the enforcement action. 26 That is a quite different question from whether a use has been abandoned, at least in the sense in which that word is normally used in planning law in the context of abandoning established use rights. Patently, when Schiemann LJ referred in paragraph 28 of the Thurrock case, the passage I have just quoted, to the permanent cessation of the use, he was not intending to advocate a test similar to that of abandonment, which he had already expressly rejected in his judgment.

27 The proper approach was put, if I may say so, very clearly by my Lord, Chadwick LJ, at paragraphs 58 and 59 in Thurrock when referring to the earlier case of Panton and Farmer v Secretary of State for the Environment [1999] JPL 461 . Chadwick LJ there said this:
"If, on the other hand, the deputy judge intended to suggest that an enforcement notice could and should be served in respect of a use which had commenced as a result of a material change of use in breach of planning control but which had ceased to be an active use before any accrued planning right had arisen, then I am unable to follow his reasoning or to see how an enforcement notice could be appropriate in those circumstances. It is important to keep in mind that an enforcement notice must specify the steps which the local planning authority required to be taken 'or the activities which the authority require to cease', for the purposes of remedying the breach - see section 173(3) of the 1990 Act. There is, I think, force in the editorial comment at [1999] JPL 461 , 471, that, if the deputy judge is to be taken to suggest that the notional continuation of a use which had ceased to be an active use before any accrued planning right had arisen could be sufficient to establish its own lawfulness:
'… this would mean that a local planning authority might have to issue an enforcement notice to require the sleeping use to stop: this would surely be a nonsense.' (59) The "nonsense" can be avoided by recognising that the deputy judge did not intend to suggest, in the *Panton and Farmer* case, that there was any need to serve enforcement notice in respect of the use which had ceased to be an active use before any accrued planning right had accrued."
28 On the face of it, as the passage I have quoted earlier in paragraph 23 of the decision shows, the Inspector here did find that such residential use had begun more than four years earlier and had continued since then "without significant break". But what about the process of reasoning which precedes that finding and which is criticised by the appellant Council? It appears that the Inspector found also that there were periods of time during 1997 to the end of 1999 when this building was not occupied for residential purposes. He refers not only to the "erratic pattern of use", but also to the appellant and others frequently living and sleeping in the barn "for substantial periods". That does not mean that there were not also substantial periods when it was not so occupied, and nowhere prior to his conclusion does he suggest - and nor did the evidence - that the non-occupation periods were *de minimis* . Nor does he ever clearly deal with what the use was, or what was happening in the building, in March 1997 when the four year period began. That was a crucial date. 29 What appears to have led him to the conclusion which I have cited were a number of other factors. One of those was the absence of evidence of an intention to abandon the residential use of the barn. Had that been the only troubling reference it might (and I emphasise that word) not have cast sufficient doubt on his process of reasoning. But there are other references which also give rise to concern. The Inspector refers to there being no substantial evidence that during the critical period "the barn was used for any purpose other than residential", apart from some minor storage. That, however, is not the test. A building may not be being used at certain times for any purpose at all. The fact that it is not put to some alternative use does not demonstrate that it was in residential use, which is the real issue. Likewise, the Inspector emphasises in paragraph 21 that once initial repairs had been carried out "the barn appears to have been fitted and available for residential use from then onwards". That, I am bound to say is irrelevant. The decision-maker is required to consider not the building's availability or suitability for residential use, but whether it was actually put to such use. 30 Those factors to which I have just referred, relied on by the Inspector, have to be added to his reference to the absence of evidence of intention to abandon residential use. That causes me concern because a building may well not be in continuous use for residential purposes and yet the owner fully intends to resume occupation for such purposes at a future date. The existence of such an intention would not by itself entitle the planning authority to serve an enforcement notice when the building is not being residentially used. The concept of abandoning the use is, in my judgment, best confined to the topic of established use rights where it is a well recognised concept: see *Hartley v Minister of Housing and Local Government [1970] 1 QB 413* . 31 The accumulation of these factors is such that one cannot be confident that the Inspector approached his task properly as a matter of law, leaving out of account irrelevant considerations. He seems to have been using these factors to which I have just referred to make good deficiencies in the evidence about actual use of the appeal building, both in March 1997 and subsequently. Indeed, nowhere in his decision letter does he clearly focus on the position as he found it to be in March 1997 itself. 32 I cannot go so far as to say that the Inspector had to find that the four year user had not been established, but the decision cannot stand. The Inspector failed to apply the right test. I reach this conclusion with no pleasure since, in my judgment, it means that this matter has to go back yet again for a further determination. Regrettable though that may be, I cannot escape the conclusion that the Inspector here has erred. 33 The appellant had a further point about the physical state of the building, but it is unnecessary to deal with that in light of the conclusion to which I have come. For my part, for the reasons which I have given, I would quash his decision.

## Lord Justice Sedley:

34 I agree. Mr Coppel for the First Secretary of State has submitted in the course of his argument that Mr Findlay's contentions on behalf of the local planning authority are predicated upon a false distinction between the continuous residential use of an established dwelling house and establishing the continuous use of a structure as a dwelling house. I do not think this is a false distinction. If a building is in established use as a dwelling-house, something approaching abandonment of that use will be necessary if a break in continuity is to be shown. Short of this, the law has always recognised that an occupier does not have to be continuously or even regularly present in order to establish unbroken use of the premises as a dwelling-house: see the decision of this court in *Brown v Brush [1948] 2 QB 247* ; Megarry on the Rent Acts, 11th edition, Volume 1, pages 245 to 249. But a point may come where the evidential burden shifts to the occupier to displace the influence that residential occupation has ceased. 35 If, by contrast, a structure is not in established use as a dwelling-house at the start of the material period, such use has to be affirmatively established, not merely at the start but over the whole period. Here, logically, discontinuous residential use is not continuous residential use. 36 In this context, too, I readily accept that one is dealing with evidential inferences and shifting burdens. Thus, Mr Lee had the benefit of an initial period of undoubted residential use, and of a finding, which I respectfully think **was** relevant, that he at no point intended to abandon it. But this is not enough. The mistake in the Inspector's reasoning, as it seems to me, was to proceed from the proposition that "failure to occupy the building for a period, with no other use being introduced, does not often mean that residential use has ceased" directly to the conclusion there had been continuous residential use from March 1997 to March 2001. This finding necessarily assumed that residential use was already established, when, so far as the evidence went, it had been relatively brief and tenuous. 37 The Inspector, in other words, had taken the view, defended by Mr Coppel in this court, that there was no true distinction between the two classes of case. For the reasons that I have given that view is, in my judgment, not correct. 38 The question remains whether on the evidence the Inspector could, by proper reasoning, have reached the same conclusion. Despite Mr Findlay's submission that he could not, I agree with Keene LJ that the question is not open and shut. It follows that the only fair consequence of allowing this appeal, which I agree has to happen, is a further inquiry. Whatever the outcome - but especially if it turns out to be a fifth inquiry - Mr Lee's edifice looks like finding a place not only in the Law Reports but in the Guinness Book of Records.

Lord Justice Chadwick:
39 I agree that it is impossible to be confident from the reasons that he gave that the Inspector had the right test in mind when he reached what, on its face, was a finding of fact that there was continuous residential use before 6th March 2001. He may be excused, perhaps, in the circumstances that the decision of this court in *Thurrock* , handed down some two years earlier, was not brought to his attention; as plainly it should have been. I too would allow this appeal.

Order: Appeal allowed. Respondents to pay appellant's costs after detailed assessment. First respondent to pay appellant's costs below after detailed assessment. Permission to appeal refused.

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