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R (Harbidge & Lester) v. Secretary of State for Communities and Local Govermnent [2012] J.P.L. 2012

DATE: 21 Mar 2012

In this case, an enforcement notice was issued by the London Borough of Southwark in respect of the unauthorised use of land for chapel which purported to offer religious and associated activities for homeless persons, drug addicts and unemployed people. Its services included the very loud playing of live and amplified music on weekday evenings and early on Sunday mornings, which had aggrieved residents of the adjacent dwellings.

The chapel appealed against the enforcement noticed, including on the ground that the time for taking enforcement action had expired. It was common ground that the land had not been continuously used as a chapel for 10 years, but it was contended by the chapel (and accepted by the Inspector), that there had been 10 years’ continuous use of different uses within Use Class D1 under the Town and Country Planning (Use Classes Order) 1987 as amended. The Inspector held that this was sufficient to mean that the land had acquired a lawful Class D1 use, since the effect of the Use Classes Order was that none of the changes within Class D1 amounted to a breach of planning control and therefore the last breach of planning control was more than 10 years ago.

The Claimants, who owned a live/work unit immediately adjacent to the chapel, brought a claim for judicial review (with the support of the London Borough of Southwark) on the basis that the Inspector had misdirected himself in law. The argued that the Use Classes Order had no application to unlawful uses, and that in order to acquire a lawful use it was necessary to show that a particular use, and not merely a use class, had subsisted for the relevant 10 year period. Permission to proceed with the claim was granted on the papers by Collins J.

Ouseley J dismissed the claim, accepting the Inspector’s view that the Use Classes Order could apply to unlawful uses and therefore that the last breach of planning control was more than 10 years ago and no longer enforceable. He distinguished the position under the Use Classes Order from that in relation to permitted development rights, in relation to which the Court of Appeal in Young v. Secretary of State for Environment [1983] JPL 465 had held that it was necessarily implicit in the General Development Order 1971 that permitted development rights only accrued to lawful uses and buildings.

The case is of considerable significance for authorities seeking to take enforcement action against the unauthorised use of land and for landowners seeking to resist such action on the grounds that enforcement is time expired.

John Litton QC and Charles Banner acted for the Claimants, instructed by Bircham Dyson Bell LLP.