The effect of section 171B(3) of the Town and Country Planning Act 1990 (“the Act”), in the case of an unauthorised material change of use that does not involve the change of use of any building to use as a single dwellinghouse, is that no enforcement action may be taken after the end of the period of ten years beginning with that change of use.
The underlying reasoning is that if throughout the ten-year period the local planning authority (“LPA”) had the opportunity to take enforcement action in that respect but failed to do so, it would be unfair to allow it to do so after the expiry of that period. To acquire immunity from enforcement action, therefore, the unlawful use must have been exercised continually throughout the whole of the ten-year period. It accordingly follows that if a further material change of use occurs during the ten-year period, the limitation period starts to run again since a fresh breach of planning control occurs.
The effect of section 171B(3) of the Town and Country Planning Act 1990 (“the Act”), in the case of an unauthorised material change of use that does not involve the change of use of any building to use as a single dwellinghouse, is that no enforcement action may be taken after the end of the period of ten years beginning with that change of use.
The underlying reasoning is that if throughout the ten-year period the local planning authority (“LPA”) had the opportunity to take enforcement action in that respect but failed to do so, it would be unfair to allow it to do so after the expiry of that period. To acquire immunity from enforcement action, therefore, the unlawful use must have been exercised continually throughout the whole of the ten-year period. It accordingly follows that if a further material change of use occurs during the ten-year period, the limitation period starts to run again since a fresh breach of planning control occurs.
The principal issue for the court in R (on the application of Harbige) v Secretary of State for Communities and Local Government [2012] PLSCS 74 arose out of the interrelationship between section 171B(3) and section 55(2)(f) of the Act. The latter provides, in short, that a change of use from one use within a use class to another use within the same class shall not be taken for the purposes of the Act to involve development of the land in question.
In that case, there had been an unauthorised change of use of a building in 1993 from use as a light industrial building to use as a place of worship within class D1 of the Use Classes Order. Thereafter, there had been a number of different uses, all falling within class D1. On an enforcement notice appeal, the LPA had argued that each new use was a fresh breach of planning control having the effect of starting the clock running again for the purposes of section 171B(3).
The inspector rejected that argument, finding that there had been no material change of use during the ten-year period. The court upheld his decision. None of the changes of use, after the initial unauthorised change of use, had constituted development. As a consequence, the inspector had been entitled to conclude that after ten years of use within class D1, no enforcement action could be taken.
John Martin
