Empire Communications Limited & Anor v Secretary of State for Housing, Communities and Local Government & Anor

On an appeal under section 289 of the Town and Country Planning Act 1990, the court reviews an inspector’s decision for legal error, not planning merits. Whether residential-type accommodation remains within use class C3 is a question of fact and degree. The property must be assessed in the round, including the character of the use and duration of occupation, although no single factor is determinative. Where the inspector rationally concludes that the use is sui generis serviced apartments, the ten-year enforcement period in section 171B(3) applies. An enforcement notice is interpreted within its four corners. A challenge alleging irrationality in serving the notice, rather than falling within a statutory appeal ground, must be brought by judicial review. A business model is evidence of intended operation and does not determine the actual planning use.

The appellants challenged an inspector’s decision dismissing their appeals against an enforcement notice concerning former office buildings converted into residential-type accommodation. The notice alleged a material change of use from offices to serviced apartments for short-term lets and required cessation of that use. The inspector upheld the notice, subject to removing the requirement to return the buildings to office use, and dismissed the appellants’ costs application.

The appellants appealed under section 289 of the Town and Country Planning Act 1990 on six grounds. They disputed the classification of the use, the meaning and precision of “short-term lets”, immunity from enforcement by lapse of time, the notice’s application to parts of flats, the treatment of their business model, and the costs decision.

1. All grounds dismissed. The challenge to the decision letter and the consequential challenge to the costs decision failed.
2. On grounds 1 and 5, the inspector had correctly treated the central issue as whether the buildings’ overall use fell outside use class C3. Whether a use departs from C3 is a question of fact and degree. The property must be considered in the round. The character of the use and duration of stay are relevant factors, but duration is not determinative. The inspector considered the relevant features, including layout, common areas, advertising and services, and was entitled to conclude that the buildings formed a single planning unit used as sui generis serviced apartments. That conclusion involved planning judgment and disclosed no rationality or reasons error. The business model showed intended operation only; the actual use was decisive.
3. The provisions of sections 25 and 25A of the Greater London Council (General Powers) Act 1973 were immaterial. They concerned a change from residential premises to temporary sleeping accommodation, whereas the inspector’s finding was of a direct change from offices to sui generis serviced apartments.
4. On ground 2, the notice was to be interpreted within its four corners. Its operative effect was sufficiently clear: the appellants had to cease using the properties as serviced apartments. The reference to short-term lets did not import the 90-night rule. A complaint that the notice was irrational because of its boundaries was not a statutory ground under section 174 and could only have been pursued by judicial review. In any event, the complaint failed on its merits.
5. On ground 3, a sui generis change of use was subject to the ten-year period in section 171B(3), not the four-year exception in section 171B(2), which is confined to a change to use as a single dwellinghouse. Any possible error in considering the four-year period could not affect the result because the appellants accepted that ten years had not elapsed. The costs challenge necessarily failed with the substantive challenge.

The judgment itself records no earlier reported court decision in the same litigation. It concerns an appeal to the High Court under section 289 of the Town and Country Planning Act 1990 against an inspector’s enforcement notice appeal decision dated 11 February 2025. Permission to proceed was granted on 19 August 2025.