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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 >> London Borough of Islington v Secretary of State for Housing, Communities And Local Government & Anor  EWHC 2691 (Admin) (17 October 2019)
Cite as:  EWHC 2691 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| LONDON BOROUGH OF ISLINGTON
|- and -
|(1) SECRETARY OF STATE FOR
HOUSING, COMMUNITIES AND
(2) MAXWELL ESTATES LIMITED
Leon Glenister (instructed by the Government Legal Department) for the First Respondent
Rosie Scott (instructed by Attwells Solicitors LLP) for the Second Respondent
Hearing date: 17 September 2019
Crown Copyright ©
Mrs Justice Lang :
"At the Inquiry, in examination in chief, Mr Abbasi accepted that there was an intention to improve the quality of the flat to enable the rent to be increased and that that justified the subsequent tenant, Miss Migliore being charged more rent. It seems to me that, despite the break in occupation, this amounts to clear evidence of a continuation of the residential use and intention to permit occupation of the unit again, upon completion of the improvement works and thus to further the breach. This was therefore a period during which the unauthorised use continued."
Grounds of appeal
i) The Inspector misunderstood and/or misapplied the law regarding immunity from enforcement action taken against a material change of use.
ii) The Inspector misinterpreted and/or misapplied the burden and standard of proof under section 174(2)(d) TCPA 1990.
iii) In the alternative to (i) above, the Inspector's conclusion was contrary to the evidence, and so was irrational.
iv) Procedural impropriety. The Inspector acted unfairly by relying on matters raised by Ms Scott, on behalf of Maxwell Estates, in her closing submissions, concerning the Council's ability to enforce against residential use during the period of the renovations, which had not been put to the Council's witness in cross-examination, nor in re-examination of Mr Abbasi. The Council did not have a reasonable opportunity to adduce evidence and to make submissions on these matters, and this was drawn to the Inspector's attention.
"(2) Where there has been a breach of planning control consisting in the change of use of any building to 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."
"(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters."
Ground 1: misdirection and/or misapplication of the law in relation to section 171B(2) TCPA 1990
Submissions by the Council
Submissions by the Secretary of State and Maxwell Estates
"15. The essential reasoning of the judge was as follows
i) The Panton case was distinguishable since that was concerned with an accrued right to use land in a particular way and how this could be lost;
ii) The statute gives immunity if the breach complained of in the enforcement notice occurred more than 10 years ago;
iii) 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;
iv) If at any time during the relevant period the LPA would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period can not count towards the rolling period of years which gives rise to the immunity.
v) It was for the landowner to show that at any time during the relevant period enforcement action could have been taken;
vi) The inspector had misunderstood Panton and treated the two years of unlawful activity in the early 1980's as though this had resulted then and there in that activity being a lawful use;
vii) This constituted an error of law."
"25. 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.
26. The concept of abandonment, which was central to the Inspector's reasoning, is one which has been evolved in circumstances where a landowner has a right under planning law to use his land in a particular way but then either does not use it actively at all or starts to use it in a different way. Can the landowner thereafter resume without a further planning permission what undoubtedly had been a lawful use on an earlier date? This sort of situation can undoubtedly pose problems. It was that sort of situation with which Panton was concerned.
27. In the present case, had the activities which took place on the land between 1981-1983 continued unabated until 1992 and had the landowner then ceased to use the land for aircraft activities for 3 years and then sought once more to use it for aircraft activities that type of problem would have arisen. But the inspector did not find that the commercial use continued unabated. If anything, he found the contrary. He approached his task by asking whether the LPA had shown that the commercial use which existed in 1981 and 1982 had been abandoned and applying a presumption that in the absence of clear evidence to the contrary the unlawful commercial activity continued throughout the period 1981-1989. Thus instead of deciding whether the landowner had shown that the unlawful activity had continued throughout the relevant period he asked himself whether the LPA had discharged some burden of proof in relation to that period. He apparently held that the landowner's own declaration in the Requisition for Information that on 8 July 1983 the land was being used for agriculture and a dwelling was not sufficient. He did not ask himself whether enforcement action could have been taken throughout the period 1981-1991 or any other clearly defined 10 year period. That is a question which should in my judgment have been addressed by him and should be addressed by the Secretary of State if this appeal is dismissed and the case is remitted to him.
28. 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 week-end 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 the 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."
"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  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  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 an 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  1 QB 413."
" 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 ., so that the planning authority could at any time during that period have taken the enforcement action."
" . 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 Inspector emphasises 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."
"The more helpful approach, in my opinion, is to consider a number of buildings that quite clearly are dwelling-houses and others that equally clearly are not and to see whether this throws up any indication of what ought and what ought not to be taken into account.
Consider a building that anyone would acknowledge was a dwelling-house. If it is not being lived in because, for example, the occupants are on holiday or because they have two houses and spend half the year in each, it remains a dwelling-house. Take a common situation where a family has a second house in the country that is only visited at weekends, in the summer months and for a summer holiday. That is clearly a dwelling-house. So the intention to use one's house, or the practice of using it throughout the year, is not essential.
If a house is empty pending its sale or because its owner cannot, or does not want, to let it, it is still a dwelling-house. So emptiness is not fatal.
If it cannot be occupied because it is flooded, or is undergoing extensive repair, it is still a dwelling-house. So, too, a second home in a remote mountainous district, cut off by snow every winter. So an ability to use it whenever one wants to is not an essential either.
Suppose that there is a national emergency and an order is made prohibiting the use of houses in a particular area for the duration of the emergency: they would nevertheless remain dwelling-houses. So even an inability to use a house lawfully does not necessarily prevent it from being a dwelling-house.
Leaving aside extraordinary events like floods and national emergencies and repairs so extensive that the occupant has to move out, is it a characteristic of every dwelling-house that the owner or occupier could live in it permanently if he wanted to? I think not.
Suppose that a London-based company requires a succession of employees to be based one at a time for four months in a location far distant from London. Suppose that the company buys a house and makes it available to each employee and his family for his tour of duty. It would still be a dwelling-house. Take a holiday cottage subject to time-share with a number of owners each enjoying the right to occupy it for two particular weeks each year. That would still be a dwelling-house.
What have these examples in common? All are buildings that ordinarily afford the facilities required for day-to-day private domestic existence.
This characteristic is lacking in hotels, holiday camps, hostels, residential schools, naval and military barracks and similar places where people may eat, sleep and perhaps spend 24 hours a day. Quite clearly, none of these is a dwelling-house.
Mr. Aitchison has emphasised the "dwelling" in "dwelling-house" and has stressed that to dwell is to remain or reside. Comparatively few of those living in the buildings last mentioned ordinarily stay for long enough to be regarded as residing there. He submits, therefore, that a capacity to provide permanent accommodation is the essential character of a dwelling-house.
In my judgment, however, its more distinctive characteristic is its ability to afford to those who use it the facilities required for day-to-day private domestic existence."
"Gravesham therefore establishes that continuous residential occupation is not a requirement for a building to be "a dwelling house" and that, therefore, "use as a single dwelling house" does not require continuous residential occupation either " (paragraph 10 of the Closing Submissions to the Inquiry).
"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  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."
"27. The cases on abandonment show that use as a dwelling house should not be judged on a day-by-day basis, but on a broader and longer-term basis. Dwelling houses are frequently left empty for long periods without any question of abandonment or of their not being in or of use. A holiday home visited only yearly remains of and in residential use. Of course, such cases usually fall to be viewed against the background of previous active use. In the present case, the question is whether it is right to describe a dwelling house as having or being of no use as a dwelling house, when it has just been completed and its owner intends to occupy it within days. This too is not a question which can sensibly be answered on a day by day basis. It calls for a broader and longer-term view. Support for this is found in Impey v Secretary of State for the Environment (1980) 47 P & CR 157. The question before the Divisional Court there was whether development had occurred in the form of a material change of use of a building from the breeding of dogs to residential use. Donaldson LJ said, at pp 161162:
"Change of use to residential development can take place before the premises are used in the ordinary and accepted sense of the word, and [counsel] gives by way of example cases where operations are undertaken to convert premises for residential use and they are then put on the market as being available for letting. Nobody is using those premises in the ordinary connotation of the term, because they are empty, but there has plainly, on those facts, been a change of use. The question arises as to how much earlier there can be a change of use. Before the operations have been begun to convert to residential accommodation plainly there has been no change of use, assuming that the premises are not in the ordinary sense of the word being used for residential purposes. It may well be that during the course of the operations the premises will be wholly unusable for residential purposes. It may be that the test is whether they are usable, but it is a question of fact and degree."
28. In a later case, Backer v Secretary of State for the Environment ...1982) 47 P & CR 149, Mr David Widdicombe QC, sitting as a deputy judge, expressed doubt about the decision in Impey. He said (p 154) that, but for it, he would have had no hesitation in accepting an argument that "physical works of conversion, that is, say building operations, cannot by themselves give rise to a material change of use: some actual use is required". Backer is on any view an odd case, and the deputy judge's doubt as to whether any change of use had occurred is understandable, even on the approach in Impey-indeed, although he remitted the matter for further consideration, his expressed view was that there had been none. The issue was whether development had taken place before 7 July 1976, in circumstances where all that appears is that the works of conversion were "completed, or substantially completed, by July 1976": see p 151. The owner's brother was sleeping in the building at nights on a mattress which he moved to and from his van every day, since workmen were working during the day: see p 151. Yet the argument was that it was not necessary to consider his activity, and that the result of the physical works of conversion to a residential unit alone sufficed to constitute a material change of use. On any view, the present case involves an altogether simpler and (apart from the deceit underlying it) more conventional scenario.
29. As a matter of law, I consider that the approach taken by Donaldson LJ was correct and is to be preferred to the doubt expressed in Backer. Too much stress has, I think, been placed on the need for "actual use", with its connotations of familiar domestic activities carried on daily. In dealing with a subsection which speaks of "change of use of any building to use as a single dwelling house", it is more appropriate to look at the matter in the round and to ask what use the building has or of what use it is. As I have said, I consider it artificial to say that a building has or is of no use at all, or that its use is as anything other than a dwelling house, when its owner has just built it to live in and is about to move in within a few days' time (having, one might speculate, probably also spent a good deal of that time planning the move)."
Ground 2: burden and standard of proof
" I am not persuaded, from the information before me, that the unit would have been uninhabitable and therefore incapable of being used as a dwelling before this time."
I agree with the Council's submission that the Inspector did not apply the correct burden of proof and standard of proof here. The question was whether the Appellant had demonstrated that the basement was in continuous residential use. However, as this related to the period prior to the renovation works from October 2013 onwards, it was not material to the issues in the appeal to the High Court.
"Although it cannot be certain, it seems to me that it would have at least been possible for these documents to have been revealed to the Council it would have been possible for the Council to have found out from the Appellant about the commencement of the use of the property for residential occupation ... ."
" . notwithstanding whether the appearance of the unit, in itself, would have disguised its use, I am not persuaded that it can be said unequivocally that the local planning authority would not have been able to take enforcement action in respect of the breach of planning control at any time during the relevant four year period."
Ground 3: irrationality
Ground 4: procedural impropriety
"47. Had the Council made any further inquiries, for example, had they asked Mr Kayani from Eden Super Market as to what he knew about the use of the basement, had they inquired with Mr M T Khan who undertook the works to create the "self-contained basement flat" ; had they sought documents pertaining to the nature of the works (such as the Certificate of Installation in a dwelling, or the inspector from Lewis Berkeley ..; had they asked Mr Abbasi, Mr Lotay or his colleagues what use had been made of the space; had the Council taken any number of a very wide range of steps, there would have been evidence to establish a material change of use from its permitted ancillary A2 usage and to establish its use as a "single dwelling house"."