Royal Sun Alliance Insurance Plc v Dornoch Ltd
| Jurisdiction | England & Wales |
| Judge | Brooke,Mance,Longmore L JJ. |
| Judgment Date | 21 March 2005 |
| Neutral Citation | [2005] EWCA Civ 238 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2005 |
COURT OF APPEAL
Before Lord Justice Ward, Lord Justice Carnwath and Lord Slynn of Hadley.
Planning - continuity of use of premises - enforcement notice - break in unlawful use triggers enforcement
Ten years of continuous use of premises in breach of planning control would prevent a local planning authority from taking enforcement action, however a significant break in the continuity of such use, even if it occurred after ten years, could act as the trigger that renewed a deemed material change of use of residential property, thereby making enforcement action lawful.
The Court of Appeal so held in a reserved judgment dismissing an appeal by the landlord, Fairstate Ltd, from the judgment of Mr Justice Sullivan on July 7, 2004, in favour of the First Secretary of State and upholding the validity of an enforcement notice issued by the second respondent, Westminster City Council, alleging that without planning permission there had been a change of use of Flat 3, 22-23 Marylebone High Street, London, from permanent residential accommodation to use for short-term lettings.
By section 57(1) of the Town and Country Planning Act 1990 permission was required for the carrying out of any development of land. Section 55(1) provided that "development" included the making of any material change in the use of any building.
For residential properties in Greater London section 25(1) of the Greater London (General Powers) Act 1973 provided: "the use as temporary sleeping accommodation of any residential premises involves a material change of use of the premises."
Section 171B(3) of the 1990 Act, as inserted by section 4 of the Planning and Compensation Act 1991, prevented enforcement action from being taken "after the end of the period of ten years beginning with the date of the breach."
Mr Meyric Lewis for Fairstate; Mr Robert Palmer for the secretary of state; Westminster did not appear and was not represented.
LORD JUSTICE WARD said that the question was what, if any, breach occurred where London premises had been used (i) without appropriate permission for more than ten years as temporary sleeping accommodation, but (ii) with a change thereafter for five months to longer-term lawful residential occupation, before (iii) reverting back for the next four years to temporary sleeping accommodation.
The city council had longstanding policies to maintain a large...
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