Swale Borough Council v The First Secretary of State & Anor

For a certificate of lawful use based on the four-year limitation period, the decision-maker must determine whether continuous residential use of a building as a single dwelling house has been established. Temporary absence does not necessarily end that use. The relevant question is whether the circumstances are consistent with continuing residential use, assessed as a matter of planning judgment. An inspector’s findings of fact are binding on a challenge under section 288 unless they satisfy the stringent irrationality test. A decision letter is legally sufficient if it makes the factual basis and reasoning clear and does not reveal an error of law.

Mr Lee occupied and improved a barn containing mobile homes at 18 The Courtyard, Newnham. He applied for a certificate of lawful development concerning residential use. Following earlier decisions and successful challenges under sections 288 and 289 of the Town and Country Planning Act 1990, a third inspector allowed the appeals, quashed the enforcement notice and granted unconditional planning permission.

Swale Borough Council applied under section 288 to quash the inspector’s decision and sought permission to appeal out of time under section 289. The central issue was whether the inspector had lawfully found that the barn had been used as a single dwelling house continuously for the four years required by section 171B(2).

1. Outcome. The application under section 288 was dismissed. The proposed section 289 appeal would also fail if leave to appeal out of time were granted.
2. Section 171B(2) requires the inspector to determine whether use as a single dwelling house continued throughout the relevant four-year period. Temporary cessation is capable of being consistent with continuing use, depending on the circumstances.
3. The principles in Thurrock Borough Council v Secretary of State for the Environment Transport and the Regions & Terry Holding [2002] EWCA Civ 226 were relevant, but the use of a building as a dwelling differed from the use of land as an airfield. Residential use does not necessarily cease merely because the owner or invitees do not sleep in the building for a substantial period. Removal of personal effects and disconnection of services might indicate cessation.
4. The inspector had made a clear finding, on the balance of probabilities, that residential use as a single dwelling house had begun more than four years before the application and continued without significant break. The court was bound by that finding unless it was sufficiently unreasonable under Edwards v Bairstowe [1956] AC 14. The evidence did not meet that threshold.
5. The inspector was entitled to prefer evidence that conflicted with evidence given at an earlier inquiry. The mobile homes’ degree of physical attachment to the barn was not fundamental. Their residential use in conjunction with the building formed part of the use of the building.
6. The reasoning was sufficiently clear. There was no substantial doubt that the inspector had misunderstood the law or relied on immaterial considerations, applying the standard discussed in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.

The judgment itself describes earlier inspector decisions and successful applications by Mr Lee under sections 288 and 289. This was the Council’s challenge to the third inspector’s decision.