Moore v Secretary of State for Communities and Local Government & Anor

Whether commercial holiday letting of a dwellinghouse amounts to a material change of use is a question of fact and degree. The decision-maker must compare the character of the actual current use with the actual previous lawful use. Neither residential occupation nor holiday letting is conclusive. Relevant features include the character of the groups, the scale and frequency of occupation, and associated movements and activities.

An enforcement notice may describe the breach broadly if it covers the use actually taking place. A complaint that its requirements are excessive must identify a viable, less disruptive alternative. An inspector need not devise an unadvanced solution, but must consider an obvious alternative that would remedy the planning harm.

The appellant used a former family dwellinghouse for commercial short-term holiday lettings. The property could accommodate groups of up to 20 people and was occupied by a succession of groups for short stays.

An inspector dismissed her appeal against an enforcement notice. The notice alleged a change of use from a Class C3 dwelling to commercial leisure accommodation. Frances Patterson QC, sitting as a deputy High Court judge, dismissed the appellant's statutory appeal in [2012] EWHC 1092 (Admin).

The appellant appealed to the Court of Appeal. The issues were whether the holiday-letting use was a material change of use and whether the notice described the breach, and its required cessation, with sufficient precision.

1. Appeal dismissed. The inspector applied the correct approach to material change of use. Commercial holiday letting of a dwellinghouse may, but will not invariably, amount to a material change of use. The issue is one of fact and degree, determined by comparing the character of the actual current use with the actual previous lawful use.
2. The inspector did not assume that every holiday letting was outside the permitted dwellinghouse use. He examined the actual characteristics of the use. The groups were commonly large groups joined by shared interests rather than single households. Their frequent arrivals and departures, associated traffic, and likely party-type activities made the use materially different from use as a private family dwellinghouse.
3. Blackpool Borough Council v Secretary of State for the Environment (1980) 40 P & CR 104 supported that fact-sensitive approach. Gravesham Borough Council v Secretary of State for the Environment [1984] P & CR 142 established only that continuous residential occupation is not essential to a dwellinghouse. Moore v Secretary of State for the Environment [1998] 2 PLR 65 correctly rejected a requirement that holiday accommodation be a long-term home, but did not establish that commercial holiday lettings can never be a material change of use.
4. The description of the breach as commercial leisure accommodation was not misconceived or practically unintelligible. It covered the holiday-letting use actually being made. Any complaint that the requirement to cease that use was excessive belonged under the ground concerned with lesser steps.
5. Applying Tapecrown Ltd v First Secretary of State [2006] EWCA Civ 1744, an inspector need not construct an appellant's case or search generally for solutions. A clearly apparent and less disruptive alternative must, however, be considered. No viable narrower requirement had been proposed here, and none was obvious. The inspector therefore made no error of law in upholding the notice.

• Court of Appeal (Civil Division): dismissed the appeal and affirmed the dismissal of the statutory challenge to the enforcement notice: [2012] EWCA Civ 1202.
• High Court (Administrative Court): Frances Patterson QC, sitting as a deputy High Court judge, dismissed the appeal under section 289 of the Town and Country Planning Act 1990: [2012] EWHC 1092 (Admin).
• Planning inspector: dismissed the appellant's appeal under section 174 of the Town and Country Planning Act 1990 and upheld the enforcement notice.