Coronavirus - immunity [from Enforcement]

The clever science boffins are still rushing to create a vaccine and/or a cure for the coronavirus which is bringing the world to a halt.  It probably won't be this guy, but fingers crossed for #science.  Jonathan Easton (barrister) recently shared a post on Enforcement immunity periods on Twitter and Linkedin which got me thinking about planning immunity.  

We have been in official lockdown since 23 March 2020.  As of 10 May 2020 we are officially on the road map out of lockdown; but Phase 1 of the road out of lockdown does look very similar to lockdown itself, particularly for businesses and the High Street.  

This has already been a 7 week period. Unofficially it has been longer with the official guidance to work from home beginning on 16 March 2020.  Pubs and restaurants noted a drop in footfall from the advice to stay away from public places for at least two weeks prior to this resulting in changes to PD rights being drafted well before the official lockdown and coming into force on 24 March.  Whilst we remain in some form of lockdown the following thoughts remain relevant.

s.171B

s.171B TCPA 1990 provides for three different immunity periods from a LPA taking action for a breach of planning control. These are: -

1. building, engineering, mining or other operations in, on, over or under land; four years beginning with the date on which the operations were substantially completed.
2. change of use of any building to use as a single dwellinghouse; of four years beginning with the date of the breach.
3. any other breach of planning control (changes of use, breach of condition etc); ten years beginning with the date of the breach.

Operational development is factor of its own - if you build it; and four years later it is still there then it (subject to many caveats) will have become immune from planning enforcement.  Changes of use and other breaches of planning (generally speaking breaching express planning conditions) will be a different matter.  It may be more difficult for those breaches to subsist; single dwelling houses aside - #stayhomesavelives.  

Continuity of breach 

A continuity of breach is required.  s.171B TCPA did not expressly require that the unlawful use should have been continuous; the law simply says that a breach is immune 10 years after it began.  The requirement for continuity is a creature of caselaw.

Thurrock BC v Secretary of State for the Environment [2002] JPL 1278 asked whether enforcement action could have been taken at any time within the ten year period and within that, concluding that it would be "a nonsense for a LPA to issue an enforcement notice to require a sleeping use to stop”, but a matter of fact and degree whether a use is an “active use” or not."  It should not be confused with the case of Panton and Farmer v Secretary of State for the Environment, Transport and the Regions and Vale of the White Horse District Council [1999] JPL 461 which concerned in which order the time periods should be approach and how a continued, immune, lawful use could be abandoned.

So what happens if your unlawful business, holiday let, or countryside race track etc had not acquired immunity before early March and has then not been able to hold any events since then until (we hope) mid June at the earliest?

Break the chain

Jonathan points out that this is not dissimilar to the foot and mouth outbreak (2000 - 2002) discussed in Miles v National Assembly for Wales [2007] EWHC 10 (Admin) in which there was no use of the land for motorcycling activities for about 18 months due to the outbreak of foot and mouth disease.  The Miles case found that: -  

• The unlawful use must have continued throughout the period for the immunity to accrue (during the foot and mouth outbreak (12 - 18 months) there could have been no question of enforcement action as the racing was not ongoing) and so that period could not count towards the 10-year period
• An interruption of such significance stopped immunity being acquired if such immunity had not been attained by the date of the start of the epidemic 
• It was immaterial that the interruption in the use was not the result of a freely made choice by the operator; the key question was whether the unauthorised use had ceased, obviating the need for enforcement action.

I would argue that, thus far, the current crisis is a very different. Countryside uses are not the danger in the way they were during the foot and mouth outbreak.  If anything they are the release&%&*.  Our human need to gather in crowds is the danger.  The lockdown means we cannot travel a significant distance to use such motorcycle tracks or do it in a significant crowd.  It remains safe and legal for the landowner and his immediate family to carry on using those tracks.  That simply was not the case in 2001.  

So two things are different.  

We are currently looking at a 3 month break (fingers crossed) not an 18 month break and city uses are more at risk than countryside ones.

Material or non-material break

Dan Matthewman was quick to highlight the Westminster City Council v Secretary of State & Cordani [2013] EWHC 23 (Admin) which emphasised that "continuous" was put in context as meaning "without material interruption".  In Cordani a pavement café where the tables and chairs were taken into the restaurant each night when the restaurant closed had not suffered a material interruption in the continuity of the use of the land. 

Will the likely 3 months be a material break in continuity?  

You would argue this is going to be case specific in every case and relative to how much of the breach remains despite the non-activity in the breach.  There will be a difference between an unlawful cafe, still laid out as a cafe, and an unlawful street cafe with no chairs laid out at all between March and June.  This will be different again if it was only ever a seasonal street cafe. 

Thoughts?  How to protect your breach?

Building on that and specifically then, my thoughts: -

1. LPA's must ask not just whether there has been a break but look for a complete cessation in the alleged activity.  Applicants would be wise to put in detailed evidence about what use remained during the lockdown and how they acted on their intentions; were the premises fitted out; were business rates paid; if they weren't were the pandemic grants applied for and obtained to offset the business rates (or did they just close)?
2. It is likely too soon to conclude on any generic basis, until we know how long the lockdown must last for, whether the break will be sufficient to stop time running for enforcement.
3. What can unlawful users of land do to keep their unlawful uses running and compliant with spirit of the lockdown; should they be having frank discussions with their planning and legal teams now?
   1. Miles - referred to above related to a motorbike track in the countryside.  The risks are different now to what they were with foot and mouth.  There is nothing stopping the owner of the track continuing to ride his bikes around the track - it could legitimately count as has daily exercise.  (Under foot and mouth this would have been a major risk).  He or she clearly cannot invite large external groups to enjoy that pastime with him.  The intensity will have to diminish but the use will remain.
   2. What about a holiday let?  This will clearly differ depending on what is being claimed, an unlawful business?  A change in breach of condition?  Whether the condition prevents holiday users or short term lets (there must at least 10 standard form conditions preventing holiday let uses - all different); in circulation).  If it really targets holidays you will likely be hoping to argue that the breach isn't material; using perhaps an historical order book showing few bookings in any year until mid June.  If short term lets, a C3 - C4 style change of use then the AirBNB disclaimer is relevant - Due to COVID-19 concerns, the government in this area has issued temporary restrictions on non-essential travel. To keep our community safe, only essential stays will be able to be booked during the emergency period.  If you comply with guidance on cleanliness can your breach stay continuous by letting to essential workers who need temporary accommodation in the area?

In any event, the change in circumstances of those breaches is likely to be different in each case; each use will be different and should be analysed very specifically.

&%&* for which see this weeks picture for "views from my lunchtime walk, which at 1430 I've left a bit late today" - if you squint you can just about see Drayton Manor.

“continuity” for these purposes does not necessarily mean that the land must have been used for the activity in question on every single day during the relevant period. For example, it might have temporarily stopped during a weekend or holiday.”