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You only get what you ask for – High Court confirms approach to unauthorised building immunity

In R (Waters) v Breckland District Council [2016] EWHC 951 (Admin) the High Court considered whether a planning authority determining an application for a Certificate of Lawfulness in relation to buildings constructed without permission had to consider the lawfulness of their use.  The agricultural operator applied only in respect of the lawfulness of the operational development not the use, and the Council concluded that the four year period for accrued immunity applied under Section 171B(1) TCPA 1990.

high courtThe claimant agreed that the Council should have taken into account that:

  • the erection of a building resulting in a material change of use of land is subject to a ten year – not a four year-time limit; and
  • that buildings which are an integral part of an unauthorised use may be liable to removal even if the buildings themselves become immune.

The High Court dismissed the claim on the basis that the law in relation to certificates distinguishes between operational development and use – applicants may specify both in any application. When dealing with an application for a certificate in respect of operational development only, planning authorities are therefore not under any duty to consider the use associated with them.  She distinguished cases dealing with enforcement against unauthorised changes of use where it is recognised that an enforcement notice may require buildings to be removed where they are an integral part of the unauthorised use (Murfitt v Secretary of State for the Environmental (1980) 40P&CR254).  It was relevant that the application for the certificate was for operational development only (and that the building/structures were not solely for the purpose of the alleged industrial intensified use relating to the wider lawful use of the site).  The claimants’ application to require the authority to issue enforcement proceedings also failed.

The key points are that:

  • Applications to regularise the status of new buildings should cover both operational development and the relevant use.
  • Where use is an issue, the ten year immunity period will generally apply.
  • Achieving a certificate for buildings does not rule out subsequent enforcement against the use itself (but is subject to the application of the principle of fairness and good governance that may preclude subsequent enforcement action, noted in Welwyn Hatfield BC v Secretary of State for Communities & Local Government [2011] UKSC15).