Q & A 9.7/10
My client has a permission for a holiday unit formed from a barn in a rural area. A condition requires that the property shall not be occupied as a permanent dwelling or by any persons for a continuous period exceeding 28 days in any calendar year. It is also required that a register of occupiers shall be kept available for inspection by the LPA. I had always thought that such a condition was considered to be unenforceable and wonder whether it would be possible to have it removed.
The question of how to secure that uses permitted as holiday accommodation remain as such, has bedeviled the planning system for some time, given that the courts have ruled that a change from holiday use to permanent use is not material. Until relatively recently the prevailing wisdom was that the most enforceable way to secure holiday accommodation was to apply a seasonal restriction. This would specify that the accommodation should not be occupied during a specified period in winter. Such a condition had the advantage that a single winter inspection was all that was required to check for non-compliance, but its drawback was that it did not necessarily restrict non-holiday use during the other months of the year. However, prompted by a court decision in 1992 where it was ruled that a condition which specified holiday use was not necessarily unenforceable, conditions Circular 11/95 included advice that holiday only conditions may be applied. Many local authorities, as in the case you cite, supplement holiday use only conditions with maximum stay and letting register requirements. At appeal holiday only conditions are supported where it can be demonstrated that permanent residential use would harm planning policies, but there are examples where further restrictions have been held to be unnecessary and unreasonable. In answer to your question, and without knowing the exact planning circumstances, I would have thought that an application to remove your client’s condition could be justified, even if the result was only a relaxation.
Does the four-year or ten-year rule apply to a breach of a condition that limits the occupation of a building comprising three units of accommodation to holiday tenancies not exceeding four weeks a year, where the building is now used as three separate permanent dwellings?
Following the recent Court of Appeal judgment in First Secretary of State v Arun District Council and Brown , it now appears to have been settled that any breach of control that involves a change of use to a single dwellinghouse is subject to the four-year rule, irrespective of whether it contravenes any condition. So this would apply in your case.
While I agree with your summary of the Court of Appeal judgment in First Secretary of State v Arun District Council and Brown (2006), I disagree that it applies to the case discussed. That breach did not involve a change of use to a single dwellinghouse. Rather, it involved the use of a single dwellinghouse subject to a condition. Consequently the limit is ten years.
The court was unanimous in its judgment that a breach of planning permission resulting from a failure to comply with a condition restricting change of use to use as a single dwellinghouse was governed by the four-year time limit in Sec. 171B(2) of the 1990 Act and not the ten-year period provided for by Sec. 171B(3). This issue should now be beyond doubt.
I agree with JG's interpretation of the application of the Arun case in respect of holiday lets. While this judgment was clear, it does not apply to dwellings covered by occupancy conditions. Holiday lets fall in class C3 of the Use Classes Order 1987 and are thus dwellinghouses, albeit that their occupation is restricted rather like agricultural dwellings. The use of a holiday let as a permanent dwelling cannot therefore be a change of use to a dwellinghouse, as the original use is already as a dwellinghouse. So the unauthorised occupation of the dwelling is not subject to the four-year time limit. It is a breach of the holiday occupancy condition and the ten-year limit applies. RB.
On reflection, I accept that this matter is arguable. The key issue is whether the breach of control concerns a change of use to a single dwellinghouse. In Bloomfield v Secretary of State for the Environment, Transport and the Regions and Another , the High Court held that permanent residential occupation of a building subject to a planning condition stipulating that it should "not be used at any time for permanent residential accommodation" and limiting its use to a holiday let did not involve a change in use to a single dwellinghouse and thus the ten-year rule applied. In Arun, however, the Court of Appeal ruled that for the purposes of the four-year rule a change of use to a single dwellinghouse need not be material. It held that any change of use, including one that does not involve development, is sufficient to trigger this immunity period. Although I accept that a single dwellinghouse occupied as a holiday let and a single dwellinghouse occupied on a permanent basis fall in the same use class, it is clear that they have different planning impacts. So while a change from one to the other might not involve development and be material, in light of the Arun judgment it could be argued that the four-year time limit should bite. In HV's scenario, where the building accommodating the dwellings had a previous use and the dwellings were never occupied as holiday lets, this would seem to be the case in any event. PM.