Unlawful Use, Enforcement Immunity, and Reversion to Former Lawful Use

Introduction

1.1. The Town and Country Planning Act 1990 (TCPA 1990) provides that planning permission is required for the carrying out of any development of land (section 57(1), TCPA 1990).  

1.2. The definition of development includes “making any material change in the use of any buildings or other land” (section 55(1), TCPA 1990). This means that the requirement to obtain express planning permission generally applies to any “material change of use” unless the following circumstances apply:

• Where a change of use is permitted development by virtue of Part 3, Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GDPO 2015);
• Where the developer obtains a “certificate of lawfulness” from the local planning authority (LPA) (section 191 TCPA 1990);
• If the time limit for enforcement has expired (section 171B TCPA 1990). 

1.3. The answer to the question in this case will depend on whether the time period for enforcement has expired. 

2. Material change of use within the enforcement period

2.1. If there is an unlawful material change of use without planning permission and the period for enforcement has not expired, then the LPA may take enforcement action against the developer utilising its various enforcement powers under Part VII TCPA 1990 to halt the unlawful use (use A), and require a return to the previous lawful use (use B).

2.2. In addition, section 57(4) TCPA 1990 provides that:

“where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose of which […] it could lawfully have been used if that development had not been carried out.” 

2.3. The mechanics of section 57(4) were explained by Hickinbottom J in Newland v Secretary of State [2008] EWHC 3132 (Admin): 

"i) […] There is no requirement to obtain planning permission to resume a former lawful use of land where there has been successful enforcement action against a subsequent unlawful material change of use. The landowner is entitled to revert to the lawful use that ceased when he embarked on the unlawful use.

ii) However, following enforcement action, the only use that can be made of the land without obtaining fresh planning permission is the use for which the land could have been used immediately before the use of which complaint is made in the enforcement notice. Reversion is only allowed to the use which was current immediately before the development which is the subject of the enforcement notice, and then only if that use was lawful (Young v Secretary of State for the Environment [1983] 2 AC 662 at page 670F-G).”

2.4. Therefore, in cases where the enforcement period has not expired, and a LPA has taken enforcement action, a return to the previous lawful use (use B) can be made without the requirement for planning permission to be obtained. 

2.5. Equally in cases where the enforcement period has not expired, and the LPA has not taken enforcement action, then a return to the previous lawful use (use B) can be made without the requirement for planning permission to be obtained. The reason is because the unlawful use (use A) has not yet become lawful, and until the point in time that it becomes lawful, then the only lawful use of the land is the previous lawful use (use B). 

3. Material change of use after expiry of the enforcement period

3.1. If the enforcement period has expired (and no enforcement action has been taken prior to the expiry date), then the development (use A) becomes immune from enforcement for planning purposes. Use A that was originally unauthorised becomes lawful pursuant to sections 171B(3) and 191(2) TCPA 1990. 

3.2. In such circumstances, the lawful use would be the current use, use A. Express planning permission would be required to change the use back to the former use (use B) unless:

3.2.1. the change is not a “material” change of use for the purposes of section 57(1) TCPA 1990 i.e. it is not “development of land” and the change is not therefore “development” for the purposes of section 55(1) TCPA 1990; or
3.2.2. the change is permitted development within Part 3, Schedule 2 to the GDPO 2015.

3.3. That this is the correct interpretation was confirmed by Hickinbottom J in Newland; in that case, the site had a lawful use pursuant to a 1986 permission for the siting of a caravan and ancillary uses within a garden area, the garden accordingly had a lawful use as a caravan site (use A); extensions were added to the caravan, and as a consequence there was a material change of use of the site to a single dwelling house and ancillary uses in the garden area (use B). That material change of use achieved immunity from enforcement. Later, the owner placed additional caravans on the garden area, and was enforced against. The owner could not revert to a lawful use of the garden as a caravan site (use A), as that use had been lost when the intervening single dwelling house use (use B) became immune from enforcement.

“Section 57(4) does not operate to permit resumption of use as a caravan site. It only permits the resumption of the last use of the land immediately prior to the use against which enforcement steps are being taken, provided that such use was lawful.” 

“Nor of course could he [the owner] use Section 57(4) to leapfrog back to use as a caravan site. The use as a garden had supplanted the use as a caravan site under the 1986 planning permission. That permission was spent.”

Useful Resources

• Practice Note: “Material change of use”
• Practice Note “Planning – enforcement”
• Practice Note: “Lawful development certificates”
• Town and Country Planning Act 1990
• Newland v Secretary of State [2008] EWHC 3132