Fairstate Ltd, R (on the application of) v First Secretary of State & Anor

An enforcement immunity acquired through ten years’ continuous use is not equivalent to planning permission for every purpose. It may end when the land is changed to another use, particularly where reverting to the former use constitutes a material change of use. Under Greater London Council (General Powers) Act 1973, section 25, a change from another residential use back to temporary sleeping accommodation is deemed to be a material change of use, whether or not the intervening change was materially different as a matter of fact and degree. A fresh enforcement period therefore begins on the deemed change. Section 57(4) of the Town and Country Planning Act 1990 permits reversion to a lawful former use after an enforcement notice concerning a later use, but does not protect a voluntary reversion where that reversion itself constitutes a new breach.

The claimant appealed under section 289(6) of the Town and Country Planning Act 1990 against an inspector’s decision upholding an enforcement notice issued by Westminster City Council. The notice alleged an unauthorised change of use of a flat from permanent residential accommodation to temporary sleeping accommodation through short-term lettings.

The claimant relied on ground (d) under section 174(2), contending that enforcement action was out of time under section 171B because the temporary letting use had continued for ten years and had become lawful. The inspector accepted that the use had become immune, but concluded that a period of continuous occupation by Miss Kapoor, followed by the resumption of temporary sleeping accommodation, created a fresh material change of use within ten years of the notice. The central issue was whether section 25 of the Greater London Council (General Powers) Act 1973 produced that result.

1. The appeal was dismissed. There was no error of law in the inspector’s conclusion that enforcement action remained available.
2. In the ordinary case, if an immune use X is changed materially to use Y, a later change back to X is a further material change of use requiring planning permission. If the change to Y is not material, a return to X will ordinarily not involve a further material change.
3. Section 25 of the Greater London Council (General Powers) Act 1973 modifies that position. Temporary sleeping accommodation is treated specially. Whether the change from temporary sleeping accommodation to another residential use is material remains a question of fact and degree. However, the subsequent change back to temporary sleeping accommodation is deemed to be a material change of use. The inspector therefore did not need to decide whether Miss Kapoor’s occupation was itself a material change.
4. The ten-year immunity provisions protect continued use X, but do not make that use equivalent to a use authorised by planning permission for all purposes under the Town and Country Planning Act 1990. The court rejected the submission that only abandonment, creation of a new planning unit, or a further material change could end the immune use. A change to another use may bring it to an end.
5. Section 57(4) provides a baseline after an enforcement notice concerning use Y: the landowner may revert to the last lawful use immediately before Y. It does not permit voluntary reversion to an earlier immune use where the reversion itself is a material change of use. This conclusion was reached despite the apparent anomaly in the statutory scheme.
6. The inspector was entitled to find that the resumption of temporary sleeping accommodation after the Kapoor occupation was a deemed material change of use. The enforcement notice could therefore operate on that fresh breach. The claimant was ordered to pay the first respondent’s costs, summarily assessed at £5,000; no separate costs were awarded to the council.

The judgment does not state a prior court decision in the same proceedings. It was an appeal under section 289(6) of the Town and Country Planning Act 1990 against an inspector’s decision dated 22 March 2004, which had dismissed the ground (d) appeal and upheld the enforcement notice.