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

An unlawful planning use which has ceased before becoming immune from enforcement cannot later acquire immunity. Whether a use has ceased, rather than merely fallen into abeyance, is a question of fact and degree. Cessation is distinct from abandonment of an unlawful but immune use. The continued presence of a derelict structure does not necessarily amount to a storage use. A lawful recreational use may permit the incidental or ancillary stationing of a caravan, but using it for human habitation in the Green Belt remains inappropriate development and harmful by definition.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision dismissing appeals concerning two enforcement notices issued by Rochford District Council. The relevant notice alleged a material change from open leisure use to a mixed use involving the stationing of a caravan for human habitation. The inspector rejected arguments that the use had become immune from enforcement, or that the caravan had subsequently been stored on the land, and upheld the notice as corrected.

The central issues were whether the unlawful residential use had ceased before the statutory time limit took effect, whether the land was thereafter used for storage, and whether possible incidental recreational use of a caravan affected the planning merits.

1. Appeal dismissed. The inspector was entitled to find that the unlawful use of the caravan for human habitation had ceased before 27 July 1992, when the relevant enforcement-time-limit provisions came into force. The evidence that the caravan was a mere shell, together with the absence of evidence of overnight occupation or capability for habitation, supported that conclusion.
2. Whether an unlawful use has ceased, or is merely in abeyance, is a question of fact and degree. Cessation of an unlawful use which has not become immune is not equivalent to abandonment of an unlawful but immune use. Once the former use has ceased, there is no continuing activity against which enforcement action can be taken. The inspector therefore correctly distinguished Panton v the Secretary of State for Environment, Transport and the Regions [1991] 1 PLR 92.
3. The land was not being used for storage of the caravan after habitation ceased. The caravan was simply left in increasingly derelict and overgrown surroundings. That did not extinguish the lawful open-leisure use, but it did not create a functioning storage use. The material change of use in 2001 was therefore within the ten-year period before the notice.
4. The possible incidental or ancillary stationing of a caravan for open-leisure purposes, recognised in Restormel Borough Council v Secretary of State for the Environment [1982] JPL 785 and Wealden District Council v Secretary of State for the Environment [1988] JPL 268, had not been argued before the inspector. In any event, it could not affect the ground (a) result. Human habitation introduced a residential use in the Green Belt, which was inappropriate development and harmful by definition, and materially changed the site’s character.
5. The corrected enforcement notice did not determine whether a caravan could lawfully remain for incidental or ancillary leisure purposes. That question was left to the local planning authority and, if necessary, the Secretary of State on appeal. The appeal was dismissed, with the claimant ordered to pay the first defendant’s agreed costs of £5,802.

• High Court (Administrative Court): The appeal under section 289 of the Town and Country Planning Act 1990 was dismissed. The inspector’s decision dismissing the appeals against the enforcement notices was upheld.