Why it may get harder to escape enforcement on grounds of continuous use

If a property has been put to an unauthorised use continuously for four years, then its owner can claim immunity from planning enforcement. But, if for some of that time it was not recognisably in that unauthorised use, then immunity does not apply, the High Court has confirmed.

Islington Council: High Court criticised inspector for having "misapplied" the law
Islington Council: High Court criticised inspector for having "misapplied" the law

Last month a High Court judge criticised a planning inspector for having "misapplied" the law when he blocked Islington Council’s attempts to take enforcement action against an illegal flat conversion. The inspector had agreed with the appellant, estate agency Maxwell Estates, which argued that the converted basement at 85 Newington Green Road had been used for residential purposes for more than four years and therefore had immunity from enforcement action.

In early 2013, the basement was converted into a flat when a shower and kitchen sink were installed. A tenant moved into the property in April that year, paying a rent of £750 a month. No planning permission was sought for the change of use. However, after the tenant moved out in October 2013, the flat was renovated before being re-let in May 2014.

The High Court case turned on exactly what use the property was being put to in the intervening eight month period. The council’s barrister, Charles Streeten of Francis Taylor Building, argued that during the works the basement was reduced to an uninhabitable "shell unit" and would not have been recognisable as a residential flat. Hence, he said, during this period the council could not have taken enforcement action against unauthorised use. Therefore, he said, and so these months could not be counted as contributing to the four years of continuous use required for immunity under section 171B(2) of the Town and Country Planning Act 1990. When Islington sought to take enforcement action in January 2018, Maxwell Estates had not accrued the necessary four years, he argued.

The judge agreed, thereby providing clarity on "the correct approach to the test for continuous use when considering enforcement action," according to Streeten. Streeten says that the inspector had thought he had found "indications of an intention to carry on using the space" for residential use, which he thought could be regarded as sufficient to meet the continuous use test despite the break in occupation. "It’s not an uncommon argument, and it does sometimes succeed," said Streeten.

According to Neil Whittaker, chair of the RTPI's National Association of Planning Enforcement and planning associate at law firm Ivy Legal, the four-year immunity rule is used "very frequently" by landlords when trying to push back against enforcement action. All too often, he added, the evidence submitted in support of the claim of immunity on the grounds of four years of existing use is poor, but is not properly scrutinised by resource-poor local planning authorities (LPAs). "In my view LPAs should never accept evidence of immunity without properly scrutinising it," said Whittaker. "I have dealt with many cases where evidence of immunity submitted by the owner has turned out to be fabricated."

The Islington case is important, says Streeten, because it should give LPAs confidence that the courts will take a tough line on what constitutes continuous use and what evidence is required. Therefore, he says, they will find it easier to justify spending time and resources investigating cases, rather than accepting whatever evidence is submitted. "I think LPAs should be well aware of the ruling because it is a useful tool in their arsenal," said Streeten.

Nigel Wicks, director of consultancy Enforcement Services, agrees. "It certainly lends strength to our elbow," he said. "Hopefully it will give councils more confidence. It is common for appellants to produce pretty ropey evidence."

However, Tim Taylor, head of planning at law firm Foot Anstey, warns that the Islington decision does not mean shorter breaks in occupation will by themselves negate continuous use. The point in the case was that the basement flat was uninhabitable for an extended period of time. "The message for owners is to not allow a property to become uninhabitable if you are seeking to take advantage of the four-year rule," he said.

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