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26th February 2020

We were on a break! - Breaks in use jeopardise immunity from planning enforcement

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Under the Town and Country Planning Act 1990 property owners gain immunity from planning enforcement if an unauthorised change of use has continued for more than the relevant time period. When this breach is a change of use without planning permission to use as a single dwelling house no enforcement action can be taken after four years. However, the case of Islington LBC v Secretary of State for Housing, Communities and Local Government (2019) has reaffirmed that the breach must be continuous; a break will restart the clock towards immunity. In Islington a basement that had a Financial and Professional Services use class (A2) was converted into a flat (C3 residential use) without planning permission.

The local authority served an enforcement notice more than four years after the original conversion and the owner was initially successful in claiming immunity. However, the flat had been uninhabitable for four months and unoccupied for a further three months during the critical four-year period due to renovation works. During that break the planning authority would not have been able to take enforcement action and therefore the High Court determined that the use had not been continuous, and immunity had not accrued.

The owner’s intention to resume residential use after the renovations was held not to be material and there is no presumption of continuance with an unauthorised use. The flat did not restart its use as a residential dwelling until it was re-let. Being available or suitable for residential use was not enough to gain immunity from enforcement.

If you have questions regarding immunity from enforcement then the Planning and Environment Team at Hewitsons LLP will be pleased to guide you through the issues.