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Legal landscape: Continuity: Immunity vs abandonment

Successful enforcement of non-permitted changes of use depends on proving that the use has not been going on for four years. What if it has, but there have been breaks during that period? Tracy Lovejoy considers a tricky area of law

The recent case of London Borough of Islington v SSCLG and Maxwell Estates ([2019] EWCH 2691) is a reminder that the person asserting that a use is lawful bears the burden of proving that the use has continued for the requisite period of time. It also illustrates how important it is not to confuse rules for establishing abandonment with those for establishing lawfulness when assessing continuity of use.

The Maxwell case related to an unauthorised change of use of a basement from professional services (A2) to a flat. The unlawful residential use started over four years before the enforcement notice was served. The inspector had to consider whether the use was deemed to continue during a six-month break in residential use, when the flat was renovated. He decided that, as there was an intention to continue the use during the renovations, the break did not interrupt continuity and lawfulness was established.

His decision was quashed in the High Court. Lady Justice Hale stated that the inspector had applied a presumption of continuity during the break and had taken into account irrelevant matters such as the owner’s intentions – he had used rules for considering abandonment to assess whether the use as a flat had continued sufficiently long to establish lawfulness.

To decide that this approach was wrong, Lady Hale used case law, including the Court of Appeal cases of Thurrock Borough Council v Secretary of State for the Environment [2002] EWCA Civ 226) and Swale v Borough Council v Secretary of State for the Environment [2005] EWCA Civ 156).

In Thurrock, the inspector had confused lawfulness and abandonment and decided that despite the intermittent nature of the unauthorised use of the site as an airfield, lawfulness had been established, as this use had not been abandoned during the four years necessary to prove lawfulness. Swale related to the residential use of a site between 1995 and 2000. Although the use was intermittent, partly because of renovation works, the inspector had decided that lawfulness had been established because there had been no intention to abandon the use of the land.

The Appeal Court ruling in Thurrock gave clear guidance on establishing lawfulness, which was different from the issue of whether a lawful use right had been abandoned. It said lawfulness could only be established if the use has continued for the requisite time without enforcement.

“Hale stated that the inspector had applied a presumption of continuity during the six-month break and had taken into account irrelevant matters such as the owner’s intentions”

The rationale behind immunity from enforcement was that the council had a period within which to take action. If it didn’t enforce during that period it did not think the breach was significant. But if at any time during that period, the breach was not taking place, it could not be said that the authority had a fair chance to enforce against it.

Both the High Court and the Court of Appeal held that the inspector had misdirected himself in law and quashed his decision. The Court of Appeal in Swale said it was vital for inspectors to ask the legally correct questions: 1) When did the current unauthorised use start? and 2) Has it continued for long enough to establish lawfulness? If there are any breaks in use, the question is whether they are significant enough to affect continuity, not whether the owner intended to abandon the use during the break.

Similarly, once lawful use rights are established it is not necessary for the underlying use to continue to retain those rights and avoid abandonment. Although a long period of a non-use may point to abandonment, any intermittent use can keep a lawful use alive.  

In brief...

  • In assessing lawfulness of a change of use, decision-makers must be aware of the difference between breaks in use and abandonment 
  • Three Court of Appeal cases illustrate the point, where inspectors have mixed up the rules 
  • Each decision was quashed – lawfulness of non-permitted changes of use must be judged on time alone, not on presumed intentions of owners

Tracy Lovejoy is an associate lawyer in the planning department of Lanyon Bowdler Solicitors

Image credit | Shutterstock


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