Moore v Secretary Of State For Environment & Anor

For the four-year enforcement limit, self-contained units may constitute separate dwellinghouses even where they are occupied only for holidays or temporary lettings. A dwellinghouse is identified principally by its ability to provide the facilities required for day-to-day private domestic existence. Permanent occupation by one household is not required.

Where a building has been subdivided into separate dwellinghouses, the planning-unit concept does not determine whether there has been a material change of use. On a section 289 appeal, a finding of fact and degree may be challenged if the decision-maker applied an incorrect legal test, in which event the court may apply the correct test to the facts found.

The appellant challenged enforcement action concerning ten self-contained units created in the outbuildings of Ladycross Lodge without planning permission. The units were available to the public for short-term holiday lettings and were managed commercially as one entity.

The Inspector and the Secretary of State treated the use as one planning unit for holiday accommodation, rather than use of the units as ten single dwellinghouses. The Secretary of State therefore considered the ten-year, rather than four-year, enforcement period applicable under the Town and Country Planning Act 1990. An appeal under section 289 was dismissed by His Honour Judge Rich QC in the Queen’s Bench Division. The central issue before the Court of Appeal was whether the units were being used as single dwellinghouses within section 171B(2).

Appeal allowed. Lord Justice Nourse delivered the judgment, with Lord Justice Pill and Lord Justice Thorpe agreeing.

1. The concept of the planning unit had no role in determining the issue where a material change of use arose from the subdivision of a single dwellinghouse into separate dwellinghouses. The Court applied Van Dyck v Secretary of State for the Environment [1993] 1 PLR 124, including its treatment of section 55(3)(a) and the definition of building in section 336(1).

2. Whether premises are being used as single dwellinghouses is a question of fact and degree involving the application of a legal test. If the decision-maker applies the correct test, the court may interfere only where the facts found are incapable of supporting the conclusion. If an incorrect test is applied, the court may intervene and apply the correct test to the facts found.

3. The Court approved the approach in Gravesham B.C. v. Secretary of State for the Environment (1982) 47 P & CR 142. The distinctive characteristic of a dwellinghouse is its ability to afford the facilities required for day-to-day private domestic existence. A building does not cease to be a dwellinghouse merely because it is occupied intermittently, by different persons, or for holidays.

4. The Inspector and Secretary of State had applied an incorrect test by treating permanent occupation as relevant. On the accepted facts, the ten units could only properly be regarded as ten single dwellinghouses within section 171B(2). The decision was remitted to the Secretary of State for redetermination. The judge’s order was discharged, and the Secretary of State was ordered to pay the costs below and on appeal.

1. High Court, Queen’s Bench Division: His Honour Judge Rich QC dismissed the appellant’s section 289 appeal.
2. Court of Appeal (Civil Division): The appeal was allowed. The judge’s order was discharged and the Secretary of State’s decision was remitted for redetermination.