Basement flat enforcement immunity ruling found flawed

An inspector's decision to quash an enforcement notice directed against a basement flat in north London was legally flawed, the High Court has ruled.

The basement lay below an estate agency and had a lawful class A2 financial and professional services use. In April 2013, it was converted to a flat and occupied by a tenant. The lease expired in October 2013 and the owner renovated the premises over the course of several months before reletting to a new tenant in May 2014. In response to an application by the owner seeking confirmation that the use was lawful, the council served an enforcement notice in September 2017.

On appeal, the inspector (DCS Number 200-008-345) concluded that the basement had been in continuous use as a dwelling since April 2013. He accepted evidence provided by the appellants that the owner had clearly intended to continue the residential use despite the extensive renovations, which had made the flat temporarily uninhabitable. Consequently, he found a presumption that the use continued over the period of non-occupation and was immune from enforcement action. He held that the owner was entitled to rely on section 171B(2) of the Town and Country Planning Act 1990 and quashed the notice.

Mrs Justice Lang concluded that the inspector had failed to properly interpret and apply section 171B(2), which grants immunity from enforcement where a breach of planning control consisting of the change of use of a building to a single dwellinghouse has occurred after the expiration of four years from the date of the breach.

In her view, the lengthy period of renovation had effectively ended the original unauthorised use, so the four-year time period for acquiring immunity began afresh in May 2014. Citing Swale Borough Council v First Secretary of State [2005], she remarked that the owner’s intention to resume the use after the renovation works were complete would not by itself have prevented the local planning authority from serving an enforcement notice during the period of non-occupation.

She held that the inspector had erred in applying a "presumption of continuance" in concluding that the renovation works did not harm its use as a dwelling. She found this approach contrary to Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions [2002], which held that no presumption of continuance applies in respect of unauthorised use of a building. She concluded that the inspector had misdirected himself, applying the wrong legal tests, and decision was therefore flawed.

London Borough of Islington v Secretary of State for Housing, Communities and Local Government and Maxwell Estates Ltd

Date: 17 October 2019

Ref: [2019] EWHC 2691 (Admin)

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