Hill v London Borough of Bromley: Round 1 – When does an unauthorised change of use gain immunity from enforcement?

On 27 July 2017, an inspector allowed the landowners’ appeal, following a public inquiry, granting a lawful development certificate (‘LDC’) which confirmed the use of a building as an office within Class B1(a) of the Schedule to the Town and Country (Use Classes) Order 1987 (‘the UCO’).

The case will be of interest to anyone concerned with the following legal issues:

• how to define the correct “planning unit” having regard to the test in Burdle; and
• the relevance of a break in occupation when deciding whether an unauthorised change of use might be immune from enforcement action.

Facts

The “Bronze Works” is an employment site located in the London Borough of Bromley. The main road frontage is occupied by a large three-storey building, with a series of industrial warehouse units behind used by tenants for a variety of B2 purposes.

In December 2013, the landowners obtained permitted development rights to convert the front building into flats, pursuant to an application for prior approval made under class J of the 2013 GPDO. Given what was later to occur it is relevant to note that, at the time of making its decision, the council described this building as “an elongated three storey office unit”.

On acquiring prior approval, the landowners had every intention of progressing the development as quickly as possible, and in enabling the flats to be occupied for rent. In early 2014, the building was gutted internally, so that only the staircases remained. A scheme of external alterations was also proposed, but unfortunately for the landowners, things then went badly awry. To be precise, in October 2014 the council started raising doubts about whether the building had ever been properly in B1(a) use, which was necessary to satisfy condition J.1(b) of the 2013 GPDO.

The landowners assembled a compendium of evidence on the historical use of the site, and then applied for an LDC. According to the landowners’ evidence, their family company had used the front building independently (as an office) for nine years from having first acquired the Bronze Works site. But that business closed, and the office was then vacant for another two years and eight months before it was rented out to a new tenant, again for the purposes of an office use.

The council ultimately declined to issue an LDC, deciding that the office use (such as it was) was only ancillary to a wider commercial use of the Bronze Works site, and therefore the relevant planning unit was the whole site.

The council also advanced a second argument. It stated that the ‘office’ use had not been ‘continuous’ for an unbroken period of ten years, and so (it reasoned) there was no immunity from enforcement having regard to the statutory time limits under s.171B(3) of the 1990 Act. In putting forward this proposition the council adopted the extreme position that any break in continuity of the unauthorised use, however short, was enough to defeat the application. It argued that this vacant period could not be counted towards the passage of time immunity, and it drew a distinction with the rules which normally apply to “abandonment” of lawful uses where such breaks are often not considered to be material.

Round 1: What did the inspector decide?

(i) The planning unit

There was nothing particularly remarkable about how the first issue played out. All this required a judgment to be taken in respect of the evidence, on the balance of probabilities, having regard to the Burdle case law definition of the ‘planning unit’.

In this regard the inspector found that whilst there were common management structures between the various companies which had used the office and warehouse space, there was “a significant degree of disconnection” between the uses of the various units, and the nature and scale of activities taking place within each area. It was also important that the site had been sub-partitioned soon after the landowners bought the site. Overall, the inspector was satisfied that the use of the front building was a primary use in its own right.

(ii) Unauthorised change of use: “Continuity of use”

The inspector also rejected the council’s argument that there had been a material break in the continuity of the use. He accepted the landowners’ argument that there was a material distinction between ‘continuity of use’ and ‘continuity of occupation’. At the time it was empty the office interior and exterior remained unchanged, and the space was being publicly advertised as being available on a commercial lease. This evoked a strong intention to continue the office use, despite the break in physical occupation. As such there was nothing to prevent the council from taking enforcement action throughout the whole of the relevant ten-year period, with regard to the case law principles laid down by the court in Basingstoke & Deane BC, Swale, Thurrock and Panton & Farmer.

Concluding thoughts

It is true that all these problems could have been avoided if the landowners had sought to prove the lawful office use before these matters had progressed too far. Equally, one can also have sympathy for the path that the landowners did take given that the use had never seemed in doubt, and that prior approval had been positively determined on that basis.

Further, this all happened before the later court decisions in Keenan and Marshall which are now typically understood to mean that a planning authority’s determination, or non-determination, of an application for prior approval, does not amount to a determination of the other relevant qualifying criteria for permitted development.

But this glosses over an extremely important point, since these cases involved prior approval processes under a different part of the GPDO. There is an interesting legal question (which was advanced in the Hill case but not actually resolved by the inspector) about whether these principles do apply in the same manner to a prior approval process under the current Part 3 of the 2015 GPDO. It is at least arguable that the answer would be different: see legal article “Prior approval for permitted development after Keenan and Marshall – what have the courts actually decided?”.

Ben Garbett advised the successful landowners, Mssrs Hill, throughout the course of their dispute. If you would like to discuss any of the issues raised in this article, please contact Ben.