Legal Report

Planning, 5 February 2010

The chief interest of the Ellis case lies in the fact that it sets up a different test for breaches of a condition than for material changes of use. It demonstrates that immunity from enforcement for breach of condition can be lost much more easily than immunity from enforcement for material changes of use.

To place Ellis in its context and to clarify the tests for immunity that need to be applied, it is necessary to review the questions that previous court hearings have had to resolve where immunity has been claimed. The preliminary question is whether immunity requires a breach to continue for a period of ten years or whether it is sufficient to show that the breach commenced more than ten years ago.

Continuity evidence required

The courts have ruled that since the rationale underpinning immunity is that ten years is ample time for a local authority to take action, the breach must continue for the requisite period. In Thurrock Borough Council v Secretary of State for the Environment (2001), the Court of Appeal made the interpretation clear that continuity has to be proved and cannot be presumed.

The difficulty lies in deciding what is meant by continuity. As observed by the judge in Panton and Farmer v Secretary of State for the Environment (1998), a use may decline, become inactive and lie dormant but can still exist in the sense that it has not been abandoned. In Thurrock, the court held that a use could be said to exist only if an enforcement notice could be issued in respect of it. A notice cannot be issued against an activity that has already ceased.

However, as the court also recognised, all uses have periods of inactivity, such as weekends or holiday periods. Accordingly, there will be borderline cases where it becomes a matter of judgement whether the "break" can be said to represent a permanent cessation of the use, and thus loss of continuity, or something less in which the site or premises can properly be described as remaining in use throughout for the objectionable activity.

It is now clear that the courts will construe "continuity" narrowly, as demonstrated by Swale Borough Council v First Secretary of State (2005). Here the court held that there was no continued residential use, even though the applicant had bought the premises in question when in residential use and immediately launched improvement works with the clear intention of resuming residential use.

The court held that neither the appellant's intention nor the fact that the premises remained capable throughout of residential occupation were relevant to the issue of whether residential use had in fact continued. Both Thurrock and Swale make it clear that abandonment as a test becomes relevant if and only if the decision-maker is satisfied that there has been continued breach for the requisite period once the lawful use right has been established.

Immunity rights face review

The Ellis case breaks fresh ground because it establishes that a use which has been granted immunity can once again become unlawful even though it has not been abandoned and there has been no material change from the lawful use. The case involved a breach of an agricultural occupancy condition. All parties accepted that the breach had continued uninterrupted for more than ten years and so had gained immunity from enforcement.

However, the local planning authority's refusal of a lawful development certificate was upheld because the cottage was unoccupied at the time of the application. The court held that the breach had to subsist at the time of the application and that reoccupation in breach of the condition would represent a new breach which would not be immune from enforcement because it would not have subsisted for ten years.

In conclusion, a material change of use that has gained immunity can be "banked" at any time provided that it has not been abandoned or relinquished by a further material change of use. Conversely, a breach of condition cannot be banked and will be lost if there has been subsequent compliance with the condition, no matter how brief the period of compliance.

- Satnam Choongh is a barrister specialising in planning and public law at No5 Chambers.