CHAPTER TWO – TIME LIMITS
This chapter is divided into two distinct sections following the changes introduced by the Levelling Up and Regeneration Act 2023 which in essence no longer discriminates between the different types of breach and provides a 10-year immunity period for all breaches of planning control that occur after 25th April 2023. It should be noted that the changes apply to England only and the “old” time limits still apply in Wales.
The authors, in common with other commentators, have wondered why such a change was required as it seems to them that if a building has been in existence for more than 4 years without objection then the need for enforcement action must be called into question and we wonder how the expediency test can be met.
There are transitional provisions that will need to be taken into account as well which we discuss later in this chapter.
The “Old” Regime
These are still important as breaches of planning control that had become immune from enforcement action or that had occurred prior to 25th April 2024 but had not yet become immune will be subject to the rules that had applied up to that date.
There are three main time limits that we are concerned with and these are set out in section 171 B. These are the same as for the time limits for taking enforcement action. However, there is a potential interaction between some of the time limits that we will now examine.
It is an important point to note that time cannot run so that immunity accrues if there are gaps in the continuity of the use following its initial commencement, see Secretary of State v. Thurrock BC [2002] 2 PLR 43, CA.
The Thurrock case involved a change of use to airfield use in 1981 but “the degree of activity fluctuated” subsequently, see para. 3. It was held that the Inspector made an error by considering the commencement of flying activity as establishing lawful use rights which could only be lost by abandonment, see para. 15(vi). The court further held that
“If at any time during the relevant [10 year] period the LPA would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards the rolling period of years which gives rise to the immunity”, see para. 15(iv).
The court nevertheless accepted that there could be “fallow periods” before the expiry of the ten-year period when nothing objectionable was going on on the land (because, for instance, activities ceased overnight, over weekends or for a break in the summer or because the activities carried on were seasonal) which would not prevent time running so as to count towards the full ten years, see para. 18. This was to be distinguished from the situation where a use had permanently ceased before immunity accrued (so there would have been no activity going on which could have been enforced against), see para. 28.
Swale BC v. Secretary of State [2006] JPL 886, CA, is in similar vein. In that case, the Inspector applied the wrong test when considering whether lawful use rights had accrued in respect of the landowner’s occupation of a barn for residential purposes by referring to “substantial periods” when the barn was occupied, rather than acknowledging that that implied that there were also “substantial periods” when it was not occupied, and having himself referred to an “erratic pattern of use” over the 4 year period which was relevant in that case, see para. 28. That is, lawful use rights were not secured because of interruptions to the continuity of that use which would otherwise have resulted in the accrual of immunity.
The above is an aspect which applicants and authorities need to keep firmly in mind when calculating the running of the time period over which it is contended that immunity has accrued.
Operational Development
As with enforcement cases the applicable time limit is 4 years from the date of completion of the relevant development. Section 171 B (1) refers to “the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land….” thus mirroring the definition of development in section 55(1). What constitutes completion will need to be ascertained. The case of Sage v Secretary of State for Environment, Transport and the Regions [2001] EWCA Civ 1100 established that this means looking at what works will actually require permission and which would constitute a breach of planning control if they were carried out. Thus, works which comprise internal works only or which would be Permitted Development would not be a breach of planning control. This means that, for example, if someone were to construct a dwellinghouse without planning permission it would be regarded as complete for enforcement purposes a soon as all of the external works were completed. That does not automatically mean that the use will also be immune as we shall see shortly.
Difficulties can arise in practice where development is undertaken in apparent breach of condition. The most obvious example would be where there are various pre-commencement conditions attached to the permission which have not been discharged. Assuming these are what we might call Hart Aggregates conditions as discussed previously then in the circumstances now described any application could only be based on the fact that the actual development had been undertaken as unauthorised operational development rather than development in breach of condition. The implications of such a position could be quite profound. For example, if the development were say a large housing estate and it was built without the necessary conditions having been discharged prior to commencement or dealt with in accordance with the principles in Henry Boot the issue of whether or not the requirements of the section 106 agreement have been engaged must be at the forefront of any considerations. If payments had actually been made it must be at the very least arguable that they were made under a mistake of fact and should be returned. This is because section 106 agreements invariably have a provision which provides that the requirements are only triggered by among other things implementation of the permission. If the permission has never been implemented then the requirements are never triggered.
It is not beyond the realms of possibility that there are many large estates up and down the country where such a situation has occurred given the previous laissez faire approach of local authorities and developers to pre-commencement conditions. Due diligence as part of the conveyancing process has not always been as thorough as might expose such a situation. Apart from the issue of whether or not section 106 obligations have been wrongly performed there will be numerous houses with at best a questionable planning status and at worst mortgages will have been granted on the basis that the property can be used for residential purposes. We are not seeking to trigger either a plethora of litigation claims or applications for certificates of lawfulness as letting sleeping dogs lie may be the best response but there may be cases where it will be necessary to clarify the planning status of properties and it may be that an application for a certificate of lawfulness will be the only sensible way to resolve the issue.
Change of Use
There are two different time limits involved here. The first time period which concerns dwellinghouses is 4 years from the change of use occurring. Section 171B (2) refers to “the change of use of any building to use as a single dwellinghouse”. Applying the definition in section 336 the “building” will include “part of a building” resulting in a position where the subdivision of an existing dwellinghouse into two or more dwellinghouses would be covered by the provisions of this section. This is again in line with section 55 (3).
A different situation arose in the case of Arun District Council v Brown [2006] EWCA Civ 1172. In that case permission had been granted for a granny annex subject to the normal condition requiring that it be used in conjunction with the dwelling house to which it related. In due course the annex was let to students. The council took enforcement action basing its decision on the fact that there had not been a breach for 10 years and thus the condition was still capable of enforcement. The case eventually came before the Court of Appeal which decided that the time limit for enforcement action in respect of a change of use of any building to a single dwellinghouse was 4 years regardless of whether the breach of planning control consisted of development without permission or breach of a condition of planning permission. The Arun case was considered by the Supreme Court in the Welywyn Hatfield case which we will deal with in a moment and was distinguished but not overruled and thus remains good law. Lord Mance thought that the court of Appeal’s approach gave subsection (2) “a generous interpretation” but did not disapprove of such generosity.
It is an important point to note that time cannot run so that immunity accrues if there are gaps in the continuity of the use following its initial commencement, see Secretary of State v Thurrock BC [2002] 2 PLR 43, CA.
The Thurrock case involved a change of use to airfield use in 1981 but “the degree of activity fluctuated” subsequently, see para 3 of the judgment. It was held that the Inspector made an error by considering the commencement of flying activity as establishing lawful use rights which could only be lost by abandonment, see para 15(vi)of the judgment. The court further held that;
“If at any time during the relevant [10 year] period the LPA would not have been able to take enforcement proceedings in respect of the breach, for example, because no breach was taking place, then any such period cannot count towards the rolling period of years which gives rise to immunity”, see para 15 (iv).
Schiemann LJ qualified this by saying at para. 28 of Thurrock that;
“I accept Mr Corner’s point that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on – because it is the week-end or the factory’s summer holiday, for instance. The land would still be properly described as being used for the objectionable activity. However, I would reject Mr Hockman’s submission that enforcement action can be taken once the new activity which resulted from the material change in the use of land has permanently ceased. I accept that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity. These are matters of judgment for others”.
Chadwick LJ made the further point that, on the other hand, it would be a “nonsense” to suggest that an enforcement notice might be served in respect of a “sleeping use” which was “notionally continuing” even though it had ceased to be an active use before lawful use right could have accrued, see para. 58.
Swale BC v Secretary of State [2006] JPL 886, CA is in similar vein. In that case, the Inspector applied the wrong test when considering whether lawful use rights had accrued in respect of the landowner’s occupation of a barn for residential purposes by referring to “substantial periods” when the barn was occupied, rather than acknowledging that there were also “substantial periods” when it was not occupied, and having himself referred to an “erratic pattern of use” over the 4 year period which was relevant in that case, see para 28 of the judgment. That is, lawful rights were not secured because of interruptions to the continuity of that use which would otherwise have resulted in the accrual of immunity.
The above is an aspect that applicants and authorities need to keep firmly in mind when calculating the running of the time period over which it is contended that immunity had accrued.
The second time period is 10 years and covers “any other breach of planning control” as specified in section 171B (3). The straightforward application of this subsection would be for all changes of use involving non-residential changes of use but as well shall see there is an exception to that basic proposition. The 10-year time limit also applies to breaches of condition, as being “[an]other breach of planning control” and we consider this under a separate heading below.
A further issue arises between the interaction of the time period for operational development and the use of the land on which the unauthorised development has occurred. In the case of Sumner v Secretary of State for Communities and Local Government [2010] EWHC 372 (Admin) it was argued that where a building had become immune from enforcement action then the use of the building should be regarded as lawful in the same way as a planning permission. This proposition was rejected by the court which held that the use could not be regarded as lawful just because the time period for taking enforcement action had expired. A situation can thus arise where a local planning authority cannot take action to require removal of a building but because the use of the building has not been for more than 10 years then technically an enforcement notice could be served to prevent its continued use. This outcome was considered by Lord Mance in the Welwyn Hatfied case. In paragraph 17 of his judgment he discusses this situation and concludes that “once a planning authority has allowed the four year period for enforcement against the building to pass, principles of fairness and good governance could, in appropriate cases, preclude it from subsequently taking enforcement steps to render the building useless.” He did not elaborate as to what an appropriate case might be but there is sufficient comfort in the judgment whereby those who are in a situation where continued occupation of a dwelling could be an issue can point to paragraph 17 if confronted with potential enforcement action by a local planning authority.
The authors’ instinct on this aspect has been held to be correct, see the recent case of…