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Bowring v Secretary of State for Communities and Local Government [2013] J.P.L. 1417

DATE: 03 May 2013

This case raised an important question as to whether an enforcement notice against an unauthorised change of use could include a requirement to remove works which were an integral part of the unauthorised use but which had been installed and used prior to the change of use.

The issue arose in the context of an enforcement notice issued against the unauthorised change of use of a large townhouse from use as a single dwellinghouse (the history of which had included a lawful period of use as a house in multiple occupation in accordance with permitted development rights) to use as three separate self-contained dwellings on three different floors. Each unit had its own kitchen, bathroom, toilet and bedroom. The owner contended that kitchens had been installed prior to the change of use as three self-contained units and used during the building’s lawful occupation as a HMO. That contention was not disputed.

The Inspector allowed the owner’s appeal under s.174(2)(f) of the Town and Country Planning Act 1990 in part, but imposed a requirement that the kitchen on the first floor unit on the basis that this was the least onerous step that could be imposed which would ensure that the building returned to its lawful use as a single dwellinghouse, since it would be necessity impose a need for the occupiers of each floor to share cooking facilities and therefore mean that by definition they could not be three separate self-contained dwellings.

The owner appealed under s.289 of the 1990 Act, contending that it was outwith the scope of an enforcement notice to require the removal of works which had been installed and put to use prior to the change of use.

The respondent submitted that it was sufficient if the works were part and parcel or an integral part of the unauthorised use, even if they were not part and parcel or an integral part of the process by which that unauthorised use came into being.

In a reserved judgment, Clive Lewis QC (sitting as a Deputy High Court Judge) noted the absence of case-law on this point and in particular that the two main authorities on enforceability against incidental works, Sowmak Travel Ltd v. Secretary of State for the Environment (1987) 55 P & CR 250 and Murfitt v. Secretary of State for the Environment (1980) 40 P & CR 254, were of limited assistance on this particular issue. Reviewing the statutory language and objectives, he concluded that: “where an enforcement notice is served alleging the making of a material change of use of land, and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use.”

Charles Banner acted for the Secretary of State for Communities and Local Government, instructed by the Treasury Solicitor.