High Court Upholds Inspector's Finding of Material Change of Use in Planning Law Appeal

Citation: [2024] EWHC 490 (Admin)
Judgment on

Introduction

The case of Esther Gurvits & Anor v Secretary of State for Levelling Up, Housing and Communities & Anor [2024] EWHC 490 (Admin) presents an appeal under section 289 of the Town and Country Planning Act 1990 (‘the Act’) against an enforcement notice issued by the Second Respondent, relating to an outbuilding at 46, 48, and 50 Hurstwood Road, London. The decision offers a thorough examination of various principles in planning law, especially regarding the lawfulness of changes in the use of buildings and the interpretation of enforcement notices.

Key Facts

The Appellants, owners of the properties at 46, 48, and 50 Hurstwood Road, appealed an enforcement notice alleging a breach of planning control for the change of use of the outbuilding to an office and associated storage without planning permission. They executed their right of appeal under several grounds, including that the change of use did not occur, did not constitute a breach if occurred, and that at the date the notice was issued, no action could be taken. The Inspector dismissed all grounds of appeal, which prompted the current proceedings.

Several legal principles underpinning town and country planning law were applied and clarified in this case:

  1. Material Change of Use: A key issue was whether the amalgamation of three structures resulted in a material change of use (section 55 of the Act). The Inspector concluded that prior to 2017, each building was used for different purposes incidental to the enjoyment of each property, which changed once they were combined for sole office use.

  2. Planning Unit: The idea that buildings are used for a single primary purpose, to which other secondary activities are incidental, was critical in evaluating whether the separate outbuildings once constituted a single planning unit or several (Burdle v Secretary of State for the Environment).

  3. Incidental Use: The case considered whether the use of each part of the complex was incidental to the enjoyment of the dwellinghouses (section 55(2)(d) of the Act) and whether subsequent changes preserved that character.

  4. Statutory Time Limits: Under section 171B of the Act, enforcement actions are subject to statutory time limits. The Inspector found no evidence suggesting a breach older than the ten-year limit applicable in such cases.

  5. Mansi Principle: The court considered the principle established in Mansi v Elstree Rural District Council, which states that an enforcement notice should not abrogate existing lawful or permitted use rights. The Inspector’s decision was scrutinized for potential violations of this principle.

  6. Reasonableness and Adequacy of Enforcement Notice: The Inspector’s decision was analyzed for its reasonableness, rationality, and whether adequate reasons were provided, echoing principles outlined in South Bucks District Council v Porter (No. 2) and Grafton Group (UK) plc v Secretary of State for Transport.

  7. Scope of Appeal: As the appeal was on a point of law under section 289(1) of the Act, the court’s intervention was limited to issues like excess of power, irrationality, and procedural irregularity.

Outcomes

The High Court dismissed the appeal, concluding the following:

  • The Inspector’s finding that there was a material change of use was supported by sufficient evidence and fell within his remit to make such a determination.
  • The Inspector did not err in taking into account whether the erection of the outbuilding was within the scope of the Class E permitted development right as this was relevant to the appeal.
  • The Inspector’s inclusion of the “permanent removal” requirement in the Notice did not constitute a breach of the Mansi principle, as any future use that fell within lawful rights under the Act would be protected and deemed permissible.

Conclusion

The judgment in Esther Gurvits & Anor v Secretary of State for Levelling Up, Housing and Communities & Anor provides a robust and instructive analysis of planning law principles, particularly in relation to changes of use and the interpretation of enforcement notices. The court affirmed the Inspector’s findings, emphasizing that Notices should not strip existing lawful use rights, and upheld the mechanisms for assessing whether planning control breaches occurred and were enforced within legal bounds. The decision further highlights the court’s limited scope in appeals on points of law and the relevance of established case law as a guide for such determinations.