Sheila Moore v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 18 September 2012 |
| Neutral Citation | [2012] EWCA Civ 1202 |
| Docket Number | Case No: Cl/2012/0873 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 September 2012 |
[2012] EWCA Civ 1202
Master of the Rolls
Lord Justice Longmore
and
Lord Justice Sullivan
Case No: Cl/2012/0873
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
FRANCES PATTERSON QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CQ/8793/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. A Alesbury (instructed by Gotelees) for the Appellant
Mr. G Lewis (instructed by Treasury Solicitor) for the First Respondent
Hearing date: 16 th July 2012
This is the judgment of the Court.
Introduction
This is an appeal against the Order dated 27 th March 2012 of Frances Patterson QC (sitting as a Deputy High Court Judge) dismissing the Appellant's appeal under section 289 of the Town and Country Planning Act 1990 ("the Act") against a decision of an Inspector appointed by the First Respondent dismissing the Appellant's appeal under section 174 of the Act against an enforcement notice issued by the Second Respondent. The Inspector's decision is dated 15 th August 2011.
The breach of planning control alleged in the notice was a change of use without planning permission of the Appellant's property, St Audry's House, Melton, Woodbridge, Suffolk ("the property"), "from a C3 dwelling to use as commercial leisure accommodation which does not fall within Class C3(a)-(c), and which therefore constitutes a sui generis use". The requirements of the notice were to cease the use of the property as commercial leisure accommodation.
It is common ground that the reference to Class C3 is a reference to Class C3 in Schedule 1 to the Town and Country Planning (Use Classes) Order 1987, as amended ("the Order"). Class C3 reads as follows:
"Class C3. Dwellinghouses
Use as a dwellinghouse (whether or not as a sole or main residence) by —
(a) a single person or by people to be regarded as forming a single household;
(b) not more than six residents living together as a single household where care is provided for residents; or
(c) not more than six residents living together as a single household where no care is provided to residents (other than a use within Class C4)."
The Appellant appealed against the notice on grounds (a), (b), (c) and (f) in section 174(2) of the Act. The Inspector dismissed the appeal on all four grounds and upheld the notice as issued. There is no appeal against the Inspector's decision to dismiss the appeal on ground (a).
Factual background
The factual background is set out in some detail in the judgment below: [2012] EWHC 1092 (Admin). St Audry's at Melton was an extensive hospital complex. The hospital closed and outline planning permission was granted for part conversion and part redevelopment of the hospital site for a mix of uses, including residential.
In May 1999 approval was granted for the conversion of the property to an eight bedroomed dwelling (in fact there are nine bedrooms—a studio is used as an additional bedroom, but nothing turns on this). Conversion works were carried out, and from 1999–2007 the property was occupied as a dwelling by a family. Since May 2008 it has been let by the Appellant, through her company, Prestige Holiday Lettings, for short term holiday lets.
The Inspector's Decision
The material parts of the Inspector's decision are set out in paragraph 6 of the judgment below. Under ground (b) the Appellant argued that the alleged breach of planning control had not occurred because the allegation that there had been a change of use to "commercial leisure accommodation" was "misconceived and practically unintelligible and cannot be regarded as describing any recognised land use for planning purposes." Having said that there was ample evidence to support the contention (which was not disputed by the Appellant) that the property was being commercially let, the Inspector said in paragraphs 6–8 of the decision:
"6. I accept that the description 'leisure accommodation' might encompass a wide range of different forms of occupation of the property, some of which may constitute a material change of use, and others not. However, I consider holiday accommodation is one such purpose, since holidays are clearly leisure time.
7. I also accept that the allegation might be framed in a number of ways—and it is quite reasonably suggested for the appellant that it might be described as a 'use as a holiday dwelling'.
However, the formulation used is clear, it covers the particular use to which the property is put, and it is obviously understood by the appellant whose business it is.
8. I do not find the formulation used in the notice either misconceived or unintelligible. The alleged breach has occurred as a matter of fact, and the appeal on ground (b) therefore fails."
Under ground (c) the Appellant contended that there had been no breach of planning control because the use of the property for holiday letting was not materially different in character from the lawful use as a dwelling house. The Inspector said that there was no dispute that the property fell
"within the particular kind of building that should be described as a 'dwelling house'—that is, following the test set out in the case of Gravesham Borough Council v Secretary of State for the Environment [1984] P & CR 142—it ordinarily affords the facilities required for day-to-day existence."
There was also no dispute that the use of the property from 1999 until 2007 had been as a dwelling house occupied by people living together as a family. As the Inspector said in paragraph 10 of the decision:
"Such use falls squarely within the definition of Use Class C3(a)."
The cornerstone of the Appellant's appeal under ground (c) was the decision of this Court in Moore v Secretary of State for the Environment [1998] 2 PLR 65 (see paragraphs 20–24 below). The Inspector said that Moore was of limited relevance. Having noted the Appellant's argument that a planning permission for the construction of dwellings did not preclude a use for purposes other than as family dwellinghouses, the Inspector said in paragraph 12 of the decision:
"….in determining whether a material change of use has taken place it is necessary to look at and compare the character of the current allegedly unlawful use with that of the actual previous lawful use."
The Inspector described the characteristics of the current use of the property in paragraphs 13–16 of the decision.
"13. As now used the house is advertised as accommodating up to 18 people with an additional 2 on a sofa-bed. It is let generally for short periods of 3, 4 or 7 nights, and it is apparent that there have been quite regular bookings in each of the years from 2008 to 2010, with occupation on as many as about 175 nights per year. In 2009 there were slightly over 40 separate bookings. I note that many of these are 3-night bookings over weekends.
14. I accept that if the building is only occupied for short periods it is not disqualified from being a dwellinghouse. Furthermore, even if as large a group as 20 people occupy it, they could conceivably be a family or regarded as a single household.
15. The appellant says that residents come to the house as a pre-formed group for a pre-determined period, and have a family or other relationship which pre-disposes them to occupy the house as a single household. While it is possible that large family gatherings take place at the appeal property, there is no specific evidence to support the frequency of this, and I would expect such events to be rare. From what I have read, particularly from occupiers of nearby dwellings, numerous different groups visit the property for various reasons. There has been a yoga group of some 15 people, and a cycling group of some 20 people. There are probably many who come for countryside holiday activities, and it appears there are also many who come for reunions, parties, or celebrations of one sort or another. Such reasons for coming together largely arise from participants' shared interests, but do not establish these groups as single households.
16. A result of the current use is that new groups arrive at, and leave the property relatively frequently, often arriving on a Friday and leaving on a Monday. A new group may then arrive on a Monday and leave on a Friday, presumably with cleaners arriving at the changeover. Furthermore, it appears that groups often travel in a number of separate vehicles, as shown by a number of photographs and in third parties' written statements."
Having considered the differences between the current use of the property and its use by a family/household, the Inspector summarised his findings and overall conclusion in paragraphs 21 and 25 of the decision.
"21. In summary, I consider there are a number of distinct differences between the current use and use of the appeal property as a family dwellinghouse. Notably, the pattern of arrivals and departures, with associated traffic movements; the unlikelihood of occupation by family or household groups; the numbers of people constituting the visiting groups on many occasions; the likely frequency of party type activities, and the potential lack of consideration for neighbours.
25. Overall, as a matter of fact and degree, I consider the use of the property as part of the appellant's holiday letting business results in a use of the dwellinghouse that is quite different in character from that of a private family dwellinghouse. I consider this change in character has resulted in a material change of use of the property that is...
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