Fairstate Ltd. v First Secretary of State & Anor

Under section 25 of the Greater London (General Powers) Act 1973, an actual change from longer-term residential occupation to use as temporary sleeping accommodation is deemed to be a material change of use. This applies even where an earlier short-term use had become lawful through immunity from enforcement and the intervening longer-term occupation was not itself a material change of use.

A significant break in the continuity of short-term occupation permits section 25 to operate afresh. The resumed short-term use therefore requires planning permission and may be enforced against within the applicable ten-year period.

A flat had been used as temporary sleeping accommodation for more than ten years, so that the use became lawful through immunity from enforcement. It was then occupied for about five months under consecutive tenancies exceeding 90 days, after which short-term letting resumed for approximately four years.

A planning inspector held that the resumed short-term use was a fresh material change of use under section 25 of the Greater London (General Powers) Act 1973 and upheld an enforcement notice. Sullivan J dismissed the company's statutory appeal. The company appealed to the Court of Appeal, contending that the earlier lawful use could not be lost without abandonment or a material change of use. The central issue was whether the intervening longer-term occupation allowed section 25 to apply afresh when short-term letting resumed.

1. The appeal was dismissed unanimously. The resumed use of the flat as temporary sleeping accommodation was deemed by section 25 of the Greater London (General Powers) Act 1973 to be a material change of use. It occurred without planning permission and therefore constituted an enforceable breach of planning control.

2. A use which has continued for ten years may become lawful under section 191(2) of the Town and Country Planning Act 1990 because enforcement is time-barred. Ordinarily, an immaterial interruption followed by resumption of that use would create no fresh development. Section 25, however, creates a statutory exception where residential premises in Greater London change to actual use as temporary sleeping accommodation.

3. Section 25 forms part of general planning law and operates as a deeming provision. Its purpose is to strengthen planning control over the loss of permanent residential accommodation to short-term transitory occupation. Consistently with the purposive approach in R v Kensington and Chelsea Royal London Borough Council, ex parte Lawrie Plantation Services Ltd [1999] 3 P.L.R. 138, the provision should receive a wide, workable construction.

4. The longer-term occupation exceeded 90 days and brought the established sequence of temporary occupations to a significant end. It did not have to amount independently to a material change of use. Once it ended and short-term occupation recommenced, there was an actual change from residential occupation to temporary sleeping accommodation. That change triggered section 25 and was conclusively treated as material.

5. The ten-year immunity principle did not make the earlier short-term use equivalent to an express planning permission for every purpose. Nor did fairness require immunity to survive a later change which Parliament had deemed material. The planning authority was therefore entitled to issue its enforcement notice within ten years of the resumed short-term use.

1. Court of Appeal (Civil Division): The company's appeal was dismissed unanimously by Ward and Carnwath LJJ and Lord Slynn of Hadley: [2005] EWCA Civ 283.
2. High Court, Administrative Court: Sullivan J dismissed the company's appeal from the planning inspector on 7 July 2004. No citation is stated in the judgment.
3. Planning inspector: On 22 March 2004 the inspector dismissed the appeal and upheld the enforcement notice.