Harbidge v Secretary of State for Communities and Local Government

The Use Classes Order groups uses with similar planning characteristics. A change between purposes within the same class is not development by material change of use under section 55(2)(f), and the provision does not require the existing use to be lawful. A succession of unauthorised uses within one class may contribute to the ten-year period for enforcement purposes, even if no individual use continued for ten years. Until that period expires, the current use may still be enforced against because the succession remains an unauthorised use. The court should apply the statutory language and should not insert a requirement that Parliament omitted.

The claimants, adjoining residential occupiers and owners, sought judicial review of an Inspector’s decision allowing Pecan Limited’s enforcement notice appeal concerning use of land in Southwark as a place of worship. The Inspector corrected the notice and allowed the appeal on ground D, finding that enforcement action was out of time, but did not determine the ground A appeal.

The central issue was whether ten years of changing, unauthorised uses within use class D1 could make the current or subsequent D1 use immune from enforcement, although no single purpose had continued for ten years. The claimants argued that section 55(2)(f) required a lawful existing use and that only a single purpose could accrue immunity.

1. The claim was dismissed. The Inspector was entitled to conclude that, after ten years of use within class D1, enforcement action could no longer be taken.
2. Section 55(2)(f) of the Town and Country Planning Act 1990 does not permit the insertion of the word lawful or lawfully. The Use Classes Order is not a benefit or right conferred on a landowner. It defines development by providing that specified changes within a class do not constitute development.
3. The relevant statutory scheme distinguishes between development requiring permission and activity which does not constitute development at all. Where the activity in issue is not development, it cannot be treated as development merely to enable enforcement action.
4. A sequence of different uses within class D1 may form a continuing unauthorised D1 use for the purposes of the ten-year enforcement period. The fact that individual changes within the class do not constitute development does not itself create immunity. Before ten years has elapsed, an enforcement notice may properly address the current use, because the continuing unauthorised use has taken a different form.
5. The reasoning was consistent with the purpose of the Use Classes Order, which avoids fine distinctions between uses grouped because of cognate characteristics, including overlap and mixed use. The enforcement and lawful-use certificate provisions did not support the claimants’ interpretation.
6. The defendant was awarded costs of £13,416. The application for permission to appeal was adjourned for written submissions after receipt of the approved transcript.

First-instance judicial review. The judgment records that the claimants’ application for permission to appeal was adjourned for written submissions; no later appellate decision is stated.