Swale Borough Council v First Secretary of State & Anor

To acquire immunity from planning enforcement for a change of use to a single dwelling-house, residential use must be established throughout the four-year statutory period. The correct inquiry is whether the planning authority could have taken enforcement action at any time during that period.

Availability or suitability for residential occupation, the absence of another use and an intention to resume occupation do not establish actual residential use. The planning concept of abandonment belongs principally to the loss of already established use rights. It cannot substitute for proof of continuity while lawful use rights are still being acquired.

The owner applied under section 191 of the Town and Country Planning Act 1990 for a certificate confirming the residential use of a converted barn. Following several inquiries and earlier decisions which had been quashed, an Inspector granted the certificate and allowed a related enforcement appeal.

Evans-Lombe J dismissed the local planning authority's challenge. The authority appealed, contending that the Inspector had failed to determine whether the barn was actually used as a single dwelling-house throughout the four years preceding the application. The central issue was whether the Inspector had applied the correct legal test for continuity of use.

1. Appeal allowed. Keene LJ delivered the leading judgment. Sedley and Chadwick LJJ agreed that the Inspector's decision could not stand. The matter required a further inquiry because the evidence did not compel either conclusion on whether four years of continuous residential use had been proved.

2. The legally correct question was whether the building had been used as a single dwelling-house throughout the whole four-year period preceding the application, so that the local planning authority could have taken enforcement action at any time. The principles stated in Secretary of State for the Environment v Thurrock Borough Council [2002] EWCA Civ 226 applied equally to the four-year period under section 171B(2) of the Town and Country Planning Act 1990.

3. The Inspector's reasoning created substantial doubt about whether he had applied that test. He relied on the absence of an intention to abandon residential use, the absence of a substantial alternative use, and the barn's availability and suitability for residence. Those matters could not make good deficiencies in the evidence of actual residential use, particularly at the beginning of the statutory period.

4. The planning concept of abandonment should be confined to established use rights. An owner may intend to resume residence although the building is not presently in residential use. Such an intention does not itself make enforcement action available during the interruption. Nor does the absence of an alternative use prove that residential use continued.

5. Sedley LJ explained that a distinction exists between continuity of an already established dwelling-house use and the acquisition of such a use. Temporary or irregular absence does not necessarily interrupt an established residential use. Where residential use is not established at the beginning of the material period, however, it must be proved affirmatively over the whole period. The Inspector had effectively assumed the very continuity which had to be established.

6. The Court quashed the Inspector's decision. The respondents were ordered to pay the appellant's costs, with the First Secretary of State also liable for the appellant's costs below. Permission to appeal was refused.

1. Court of Appeal (Civil Division): Allowed the local planning authority's appeal, quashed the Inspector's decision and required a further determination.

2. High Court, Administrative Court: Evans-Lombe J dismissed the authority's challenge to the Inspector's September 2004 decision.

3. Planning Inspector: At the third inquiry, granted a certificate of lawful residential use and allowed the related enforcement appeal. Two earlier inquiry decisions had been quashed by the High Court.