Bowring & Anor v Secretary of State for Communities and Local Government London & Anor

An enforcement notice alleging an unauthorised material change of use may require operational works to be removed only where those works were integral to, or part and parcel of, making that material change of use. It is insufficient that the works merely facilitate the continuing unauthorised use if they were undertaken for a different lawful use. Whether works were integral to the change of use is fact-sensitive. The steps required must also be no more onerous than necessary to remedy the breach. Preventing use as separate dwellings may require more than removing locks, and removal of one kitchen may rationally be required while other kitchens remain. A proportionate planning decision is generally compatible with Article 1 of the First Protocol where the required works formed part of the unauthorised change of use.

The appellants challenged an inspector’s decision under section 289 of the Town and Country Planning Act 1990. An enforcement notice alleged that their property had been changed from a single dwelling to three self-contained flats. The inspector varied the notice by requiring removal of the locks to the flat entrances and the first-floor kitchen.

The appellants argued that the kitchens had been installed before the unauthorised change of use, that removing the locks was sufficient, and that removal of a kitchen disproportionately interfered with their possessions under Article 1 of the First Protocol. The central issue was whether the additional kitchens were integral to the material change of use and, if so, what steps were necessary and proportionate to remedy the breach.

1. Appeal allowed and remitted. The inspector had not determined whether the two additional kitchens were installed for a different lawful use, such as use as a house in multiple occupation, or as part of the conversion into three self-contained flats. That factual issue was material and required reconsideration.
2. Under sections 55, 57 and 173 of the Town and Country Planning Act 1990, where the breach is a material change of use, works required to be removed must have been integral to, or part and parcel of, making that change of use. Works undertaken for a different lawful use do not become removable merely because they facilitate the later unauthorised use and could still be used after that use ceased.
3. Murfitt v Secretary of State for the Environment and East Cambridgeshire District Council established that an enforcement notice alleging a material change of use may require removal of works notwithstanding expiry of the shorter limitation period applicable to operational development. It did not determine the separate question whether works undertaken for another lawful use may be removed following a later material change of use.
4. The necessity of remedial steps is fact-sensitive. Relevant considerations include the extent of physical alteration, whether the alleged dwellings are separate, self-contained and independent, and any other relevant fact. It would not necessarily be irrational to require more than removal of entrance locks, or to require removal of one kitchen rather than both. The inspector could impose the least excessive or onerous requirement compatible with preventing use as three self-contained flats.
5. Subject to the factual issue being resolved in favour of the kitchens having formed part of the unauthorised change of use, requiring removal of one kitchen would ordinarily be a proportionate control of property under Article 1 of the First Protocol. The claim that the requirement was disproportionate therefore could not succeed independently.

• High Court (Administrative Court): appeal under section 289 of the Town and Country Planning Act 1990 allowed. The matter was remitted to the inspector to determine whether the additional kitchens were integral to the material change of use.