Grendon, R (on the application of) v Secretary of State for Communities and Local Government & Anor

For a certificate of lawful use, the question is whether the building has been changed to use as a single dwelling house. That requires an assessment of both the use made of the building and its physical attributes. A building may be an unusual or adapted home, but occupation alone cannot establish the relevant planning use where the structure is incapable of being used as a single dwelling house. The four-year limitation period in section 171B(2) of the Town and Country Planning Act 1990 applies only if the alleged change of use is to use as a single dwelling house.

The appellant sought a certificate of lawful use for a building at Brimpsfield Common, claiming that it had been used as a dwelling since 1996. Cotswold District Council refused the application, treating the alleged breach as one subject to the ten-year period. An inspector dismissed the statutory appeal, finding that the building was not a single dwelling house because of its physical characteristics and facilities.

McCombe J dismissed the appellant’s challenge under section 288 of the Town and Country Planning Act 1990: [2006] EWHC 1711 (Admin). Permission to appeal was refused on paper by the judge and by Laws LJ. On a renewed oral application, the central issue was whether the inspector and the judge had applied the correct legal test by considering both use and physical attributes.

1. Application for permission to appeal refused. A renewed oral application is a reconsideration of the paper refusal in the light of oral submissions, not an appeal at large. The applicant should identify the points relied on and address the reasons previously given for refusing permission.
2. Under sections 191 and 171B(2) of the Town and Country Planning Act 1990, the relevant question was whether there had been a change of use of the building to use as a single dwelling house. If the building was incapable of being used as a single dwelling house, no such change of use could have occurred.
3. The assessment required consideration of both actual use and physical attributes. Permanent occupation was not decisive. Physical limitations, including the absence of ordinary domestic facilities, inadequate light or windows, and the building’s size and construction, could properly be considered.
4. The court accepted that unusual structures may be adapted or used as homes. That did not mean that every structure used as a home was capable of being used as a single dwelling house. The inspector was entitled to conclude, as a matter of fact and degree, that this building was not such a dwelling house.
5. The challenge under section 288 was confined to issues of law. The inspector had directed himself correctly, applied the appropriate test, and reached a lawful conclusion on the evidence. Lord Justice Thomas agreed with Lord Justice Chadwick.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused on 15 June 2007.
• High Court of Justice, Queen’s Bench Division, Administrative Court: McCombe J dismissed the section 288 application on 14 July 2006: [2006] EWHC 1711 (Admin).
• Permission stage: Permission was refused on paper by McCombe J on 14 March 2007 and by Laws LJ on 27 April 2007.