Casebook: Appeal cases - Housing: conversion - Unoccupied building judged to be dwelling

An enforcement notice directed against the change of use of a building in the New Forest to a dwelling has been upheld after an inspector found that a breach of planning control had occurred and harmed the character and appearance of the area.

The appellant argued that as the furnished building remained unoccupied, the alleged residential use had not occurred. But the inspector remarked that a "dwellinghouse" is both a use of land and a description of a building.

He noted that Lake District Special Planning Board v Secretary of State for the Environment and Impey (1984) supported the view that occupation is only one element to be taken into account in determining whether a building is a dwellinghouse.

He considered that any building constructed or adapted for the purpose of residential use is not prevented from being regarded as a dwellinghouse merely because it has not been occupied. He judged that the building had all the characteristics of a dwelling and that only occupation was lacking.

He therefore concluded that use as a dwellinghouse had occurred.

The appellant further argued that since the building had been constructed as an estate worker's cottage in the second half of the 19th century, no change of use had occurred. Despite limited evidence, the inspector found that the residential use had ceased before July 1948 and had not lawfully resumed. Having regard to schedule 4 of the Town and Country Planning Act 1990, he decided that the building had a nil use and the appellants had therefore not shown that no breach had occurred.

Turning to the merits, the inspector considered that the proposal would result in an outward expansion and consolidation of an area of otherwise loose-knit residential development into a largely open area. He concluded that residential use would increase human pressures significantly and thereby damage the unique character and quality of the New Forest heritage area.

DCS No: 34380931; Inspector: Graham Bailey; Written representations.

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