In October 2019 Cornwall Council enforced against a change of use from an agricultural field to a holiday use for the stationing of caravans and tents. Mrs Hedges appealed, arguing that the 10 year immunity period from enforcement had accrued with the use commencing in July 2009. She provided evidence of mobile shower/toilet facilities, signs, adverts and bookings in July 2009. There was no evidence of actual use in 2009. Appeal dismissed. On a s.289 statutory challenge Mrs Hedges argued that the Inspector should have followed Welwyn and looked at the matter “in the round” instead of focusing on actual use. HHJ Jarman QC judged that the Inspector was entitled to focus on evidence of use as this was a case involving a material change of use, not dwellinghouse construction as in Welwyn. Lord Mance’s observations in Welwyn should be applied to the nature of the breach enforced against.
What are the practical implications of this case?
In Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council  UKSC 15, the Supreme Court (SC) considered whether a building unlawfully constructed externally as a hay barn, but internally as a home was entitled to a lawful use certificate relying on s.171B(2) Town and Country Planning Act 1990 (TCPA90) (4 year immunity period). The focus for the SC was the building’s use before the family’s occupation. Per Lord Mance:
- it was artificial to consider that the building had no use if occupation was to occur within days (para 29)
- “This is not a question which can sensibly be answered on a day by day basis. It calls for a broader and longer-term view” (para 27)
- “Too much stress has … been placed on the need for "actual use", … In dealing with a subsection which speaks of "change of use of any building to use as a single dwelling house", it is more appropriate to look at the matter in the round and to ask what use the building has or of what use it is.” (para 29)
In Hedges a different immunity period was considered, namely the 10 years required for a material change of use to become lawful pursuant to s.171B(3) TCPA90. Welwyn must therefore be considered in context. Where a material change of use is concerned, Lord Mance’s comments are less relevant, actual use is important, and evidence of preparatory steps to a change of use are unlikely to be relevant. When preparing an application for a certificate of lawfulness for a material change of use relying on s.171B(3), the focus of the evidence should therefore be on the date the use changed, and evidence of preparatory steps to the change occurring whilst supportive should not be the evidential focus.
What was the background?
On 10 October 2019 Cornwall Council issued an enforcement notice against Mrs Hedges for "Without planning permission, the material change of use of the land from a field used for agricultural purposes to holiday use for the stationing of caravans and tents." She appealed and produced evidence of the presence of mobile toilet and shower facilities on the land, signs, advertisements and bookings, which pointed to the land being used as a campsite from July 2009, or at least by October 2009. No evidence of actual use in 2009 was produced. The Inspector accepted that the facilities provided were ones that would be expected on a campsite. However, the Inspector observed that the appellant could have lawfully used the land as a campsite for 28 days pursuant to permitted development rights, and that the facilities provided (in the absence of their use as part of a campsite) would have amounted to a storage use on the land, and that the Council would have been unable to enforce against such storage as a material change of use of the land to a campsite. The Inspector dismissed the appeal and upheld the enforcement notice, 10 years continuous use as a campsite before the issue of the enforcement notice not having been established. Mrs Hedges made a statutory challenge to the High Court pursuant to s.289 TCPA90.
What did the court decide?
HHJ Jarman QC dismissed the appeal and held that the Inspector had been entitled to focus on the actual use of the land in determining whether there had been 10 years’ continuous use for the purposes of establishing if the use had become immune from enforcement action pursuant to s.171B(3) when the Council served their enforcement notice in October 2019. Evidence of preparatory steps to a material change of use, such as installing campsite facilities, was not evidence of actual use as a campsite. Lord Mance’s comments in Welwyn which required evidence to be considered “in the round”, and in particular the consideration of what the use of a building was before it was occupied for the purposes of s.171B(2) were not relevant here. Evidence of actual use was required to establish a material change of use. In determining when the use of the land as a campsite became unlawful and entitled the Council to take enforcement action, regard also had to be had in this case to the fact that Mrs Hedges had been entitled to use the land for 28 days as a campsite pursuant to permitted development rights.
- Judge: Judge Jarman QC (sitting as a High Court judge)
- Date of judgment: 27/8/2021