Cider House doesn't Rule
In 2018, against officer advice, councillors granted Mr and Mrs Paton planning permission to construct an apple barn to support their fledgling cider business, then consisting of a few young trees. A variation permission in 2020 allowed some extra windows and doors. To the surprise of no one, over the winter of 2021/2022 the Patons built a dwelling. Enforcement action was taken in June 2023. An application for permission for the change of use of this building to a dwelling was refused as the building itself was not authorised. A later application to retain the structure for a mixed use was also rejected.
The enforcement notice alleged “erection of a C3 residential dwellinghouse”. The notice was appealed on grounds (b), (f) and (g). After an inquiry, the inspector upheld it with minor changes.
The appellants produced pictures of a couple of bottles of cider being produced and some other witness evidence but the inspector found that this was insufficient to demonstrate that the building was the apple barn which was granted permission.
It was common ground at the inquiry that the building had never been lived in and that, by the time of the notice, its kitchen had been removed. The appellants suggested that it was therefore not a C3 dwellinghouse at the time of the notice.
The inspector found that a ground (b) appeal will fail if the alleged breach had taken place in the past, irrespective of whether it was still taking place. The ground (b) appeal operates in the past tense, looking at whether the breach had occurred by the time of the notice, not whether it was still occurring.
The inspector had regard to the layout of the building as constructed, particularly its bedrooms, its lounge, its fully fitted kitchen, its bathrooms and its central heating. What was built, he found, was a dwelling, just as the notice alleged. The ground (b) appeal was therefore dismissed.
This was challenged in the High Court. Under s289 TCPA 1990, permission is required to bring a s289 challenge. The permission was contested by PINS. The matter came before Mrs Justice Lang in January 2025 and a decision was issued on 7 February, refusing permission.
The appellants suggested that because the building was not a dwelling at the time of the notice, the fact that it may earlier have been a dwelling was irrelevant. It was no longer a dwelling, there was no longer a breach of planning control and it could not have been expedient to take action.
This was roundly rejected. The judge found that ground (b) operated in the past tense; the appellant must show that the breach did not take place at all, not that it was not taking place at the date of the notice. This conclusion was said to be supported by the statutory wording of the other grounds of appeal and by the context of the ground (b); it would be, said the judge, “bizarre if an enforcement notice could lawfully be served because a breach had taken place but successfully appealed if it was not ongoing when enforced against”. And it would be wrong if the LPA could not require remediation of damage caused during one use because that use had ceased or been replaced by another. Finally, it would frustrate enforcement action if a developer could cease a breach shortly before formal enforcement action is taken and resume it afterwards.
The decision is clearly right and the conclusion that ground (b) operates in the past tense is not controversial. But there are nevertheless a couple of takeaways from the decision.
It is odd that the council described an operational development breach by reference to a use class (“erection of a C3 dwellinghouse”). Use classes have nothing to do with operational development. Arguably it is this which allowed the developer to bring arguments based on lack of use as a dwelling. The council might also have been better advised to allege construction of a building rather than specifically a dwelling.
It is also not clear what the Patons hoped to gain from the High Court appeal, other than time. Even if the building was not a dwellinghouse, the inspector had found that it was not an apple barn either. It was not an implementation of the 2018 permission and that permission had lapsed.
Enforcement action is sometimes delayed when officers see a building which is clearly going to be used as a separate dwelling but is not yet in use. It is not uncommon to wait for actual use to start before enforcing, even if the breach then enforced against is the operational development. That didn’t happen here and this decision suggests that there is no need to do so.
Similarly, there’s always a concern when issuing a MCOU notice that, if action is delayed, the use may change between site visit and issue of the notice. The enforcement notice in this case was an operational development breach but material change of use breaches were referred to in the decision as being subject to the same principles.
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