First Secretary of State v Arun District Council & Anor

A breach of planning control which consists in changing the use of a building to use as a single dwelling-house is subject to the four-year enforcement limit in section 171B(2) of the Town and Country Planning Act 1990. This applies whether the breach comprises development without planning permission, failure to comply with a planning condition or limitation, or both.

The omission of “material” from section 171B(2) means that the provision can cover a change of use which does not itself constitute development. The applicable limitation period turns on the nature of the resulting use, rather than the local planning authority’s formulation of the enforcement notice.

A local planning authority permitted an extension to a house subject to conditions restricting its occupation and preventing its use as separate residential accommodation. The owner subsequently let the extension to students as an independent unit. More than four years later, the authority issued an enforcement notice alleging breach of the planning condition.

An inspector allowed the owner’s appeal, holding that the condition was invalid and that enforcement was in any event barred after four years. On the authority’s appeal, a deputy High Court judge held that the condition was valid and that breach of it fell within the ten-year residual period in section 171B(3) of the Town and Country Planning Act 1990.

The First Secretary of State appealed solely on limitation. The issue was whether a breach of condition resulting in use as a single dwelling-house fell within the four-year period in section 171B(2) or the ten-year period in section 171B(3).

1. Appeal allowed. Section 171B(2) of the Town and Country Planning Act 1990 applies the four-year enforcement limit where a breach of planning control consists in changing the use of a building to use as a single dwelling-house. It applies whether the breach arises through development without planning permission, failure to comply with a condition or limitation, or both.

2. Section 171A(1) defines breach of planning control as embracing both unauthorised development and failure to comply with a planning condition or limitation. Section 171B(2) uses that omnibus expression without excluding either category. Unlike section 171B(1), it does not confine its operation to activity undertaken without planning permission.

3. The omission of the word “material” before “change of use” in section 171B(2) is significant. The subsection can therefore cover a breach of condition involving a change of use which is insufficiently material to constitute development. Applying one limitation period to either statutory form of breach also avoids the illogical result that the period would depend on how the authority formulated its enforcement notice.

4. The construction accorded with the statutory history and with London Borough of Camden v Backer and Aird [1982] JPL 516, where a similar four-year provision covered a change of use which was also a breach of condition. It was also supported by the expressly obiter observation in King’s Lynn and West Norfolk BC v SSE [1995] JPL 730. Carnwath LJ cautioned that the report preceding the 1991 amendments could identify the mischief and general policy, but was not a definitive guide to the statutory meaning.

5. The extension’s change from use ancillary to the main house to independent student accommodation was a material change of use under section 55(3)(a). It constituted unauthorised development, breach of condition, or both, and fell within section 171B(2). Enforcement commenced more than four years after the change was time-barred. The High Court decision was quashed and the inspector’s decision upheld.

1. Court of Appeal (Civil Division): Allowed the First Secretary of State’s appeal, quashed the High Court decision and upheld the inspector’s decision.

2. High Court, Administrative Court: HHJ Mole QC, sitting as a deputy High Court judge, allowed the local planning authority’s appeal. He held that the planning condition was valid and that the ten-year enforcement period applied.

3. Planning inspector: Allowed the landowner’s appeal against the enforcement notice. The inspector held that the condition was invalid and, in any event, that enforcement was barred by the four-year limit.