London Borough of Islington v Secretary of State for Housing, Communities And Local Government & Anor

For the four-year immunity from enforcement under section 171B(2) of the Town and Country Planning Act 1990, the landowner must establish continuous use of a building as a single dwelling throughout the relevant period. The inquiry is whether enforcement could have been taken against the continuing breach at any time during that period.

There is no presumption that an unauthorised use continues. Future intention to resume residential use, and the building’s suitability or availability for occupation, do not establish continuity. The statutory test differs from the question whether a building is a dwelling house for other planning purposes. The burden lies on the landowner, on the balance of probabilities.

The Council appealed under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision allowing Maxwell Estates Limited’s enforcement appeal. The Inspector had found that a basement, changed from ancillary A2 use to residential C3 use, had been continuously used as a dwelling for four years despite a period of renovation and non-occupation.

The Council challenged the Inspector’s approach to continuity, the burden and standard of proof, irrationality, and procedural fairness. The central issue was whether the residential use continued throughout the relevant four-year period for the purposes of section 171B(2).

1. Appeal allowed on Ground 1 only. The Inspector misdirected himself and misapplied section 171B(2) of the Town and Country Planning Act 1990. Grounds 2 and 4 failed, and Ground 3 did not require determination.
2. The correct question, applying [2002] EWCA Civ 226 and [2005] EWCA Civ 1568, was whether the basement had been used as a single dwelling throughout the whole four-year period, so that the planning authority could have taken enforcement action at any time. The rationale of the immunity provision did not add a separate requirement that the authority could reasonably have discovered the breach, unless the statutory concealment provisions applied.
3. The Inspector wrongly relied on Maxwell Estates’ intention to resume residential occupation. That intention did not establish continuing residential use during the period when the basement was not being used residentially. He also wrongly treated the building’s capability or suitability for occupation as relevant, rather than asking whether it was actually used as a dwelling.
4. The Inspector further erred by applying a presumption of continuance. There is no such presumption for an unauthorised use before an accrued planning right has arisen. The reasoning in Gravesham BC v Secretary of State for Environment concerned the different question whether a building was a dwelling house for permitted-development purposes, and did not govern section 171B(2).
5. The burden lay on Maxwell Estates to establish continuous residential use, on the balance of probabilities. Some contrary formulations in the decision letter were legally erroneous but immaterial because they concerned the practical discoverability of the breach, which was not part of the statutory test.
6. The Inspector was entitled to deal with matters raised in closing submissions without recalling a witness. In any event, the alleged procedural unfairness concerned the immaterial issue of whether the Council could have discovered and enforced against the breach.

The appeal therefore succeeded on Ground 1.

• High Court (Administrative Court): The appeal under section 289 of the Town and Country Planning Act 1990 succeeded on Ground 1. The Inspector’s decision was legally flawed.
• Secretary of State’s decision: An Inspector had allowed Maxwell Estates’ enforcement appeal under section 174(2)(d), concluding that the basement had enjoyed four years’ continuous residential use. The High Court set aside that legal approach.