Monthly Archives: July 2016

Unlawful use enforcement notice could require removal of structures

In what circumstances may an enforcement notice issued by a local planning authority against an unlawful change of use require the removal of structures connected with that unlawful use?

In the Court of Appeal case of Hydro v Secretary of State for Communities and Local Government & Anor [2016] planning control was breached by the making of a material change of use from residential use to mixed use for residential purposes and as an “Adults Private Members’ Club” coupled with the erection of various structures and the laying of hardstanding to create a car park.

Applying the Divisional Court decision in Murfitt v Secretary of State for the Environment (1980) and the first instance decision in Somak Travel Ltd. v Secretary of State for the Environment (1988) the Court of Appeal said:

“…an enforcement notice directed at a breach of planning control by the making of an unauthorized material change of use may lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself – provided that the works concerned are integral to or part and parcel of the unauthorized use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased. But it can extend to unauthorized changes of use where the associated works, if viewed on their own, would have become immune from enforcement under the four-year rule in section 171B(1) (as in Murfitt) or would be outside the scope of planning control (as in Somak Travel Ltd).”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Offices to flats: Deemed planning consent convertible to have lesser conditions

In the High Court case of Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] the Claimant, applied to the Defendant Council for a determination under the Town and Country Planning (General Permitted Development) Order 1995 whether prior approval was required before making a change in use from an office into three self contained residential flats. The Council granted prior approval for the change of use. That approval amounted to deemed planning consent under Article 3 and Class O of Part 3 of Schedule 2 of Town and Country Planning (General Permitted Development) Order 2015. However that approval was subject to fourteen conditions. Some required the later submission, approval and implementation of schemes to deal with things.

The question raised was whether or not an application under section 73 of the Town and Country Planning Act 1990 may be made for the grant of planning permission for the development of land without complying with conditions subject to which a prior approval was granted for development where (as here) planning permission was granted not expressly by the local planning authority but granted instead by virtue of a development order made by the Secretary of State.

The court said such an application could be made. Any conditions subject to which prior approval was granted were “conditions subject to which the relevant Class O planning permission was granted.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Flat Landlord not responsible for Tenant fall in Common Parts

Where a lease is a lease of a dwelling-house which forms part only of a building, then, under section 11 (1A) of the Landlord and Tenant Act 1985 there is implied into the tenancy agreement a compulsory contractual covenant by the lessor to keep in repair the structure and exterior of the dwelling-house and the structure and exterior of any part of the building in which the lessor has an estate or interest (including drains, gutters and external pipes).

In Edwards v Kumarasamy [2015] Mr Kumarasamy’s assured shorthold tenant of his Flat 10, Mr Edwards, had tripped on an external paved area forming part of the apartment block’s common parts. Although he did not own them, Mr Kumarasamyh had a legal easement to use the front hall, the car parking space and Bin Store and other facilities provided by the head landlord.

The Court of Appeal found that this gave him an “estate or interest” in the paved area where Mr Edwards sustained his accident.

Was that enough to bring the extended covenant into play?

The Court of Appeal said Mr Kumarasamy’s legal easement over the front hall meant that the front hall was a part of a building in which he had an estate or interest.

In Brown v Liverpool Corporation [1983] the Court of Appeal held that steps leading to the front door of a self contained dwelling were part of the exterior of the dwelling.

In the current case, the paved area which led from the front door of the apartment block to the car park was not part of the exterior of Flat 10. However, the paved area was both short and also part of the essential means of access to the front hall in which Mr Kumarasamy did have an estate or interest because of his easement to use it. So the court ruled that the paved area could properly be described as the exterior of the front hall.

Mr Kumarasamy said Mr Edwards should have given him notice of the uneven paving stone and a reasonable opportunity to fix it but the court said such a qualification could not be implied here because the defect was outside the property actually let to Mr Edwards.

So the extended Landlord’s covenant applied to the paved area and Mr Kumarasamy was liable to Mr Edwards under it for the defect.

The Supreme Court has, in Edwards v Kumarasamy [2016] , overturned the Court of Appeal decision:

“….. that decision was wrong. The fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the exterior of that building. Steps separated from the outside of a building by a two metre path cannot, as a matter of ordinary English, be said to be part of the exterior of that building.”

So it was strictly unnecessary to consider the other issues raised by the appeal.

However the Supreme Court agreed with the Court of Appeal that Mr Kumarasamy had an “estate or interest” in the paved area where Mr Edwards sustained his accident. But said that the repairing covenant implied by section 11 was to be interpreted and applied in precisely the same way as a landlord’s contractual repairing covenant. The rule in relation to such covenants was that, until he has notice of disrepair a landlord should not normally be liable for disrepair of property.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.