Background
Ms. Ermis owns residential property at 104 Coldharbour Lane, Camberwell, London. Without planning permission, a roof space was converted into a residential flat and dormer extensions were added in 2019. Ms. Ermis acquired the property in February 2023 following a divorce settlement. The London Borough of Lambeth issued an enforcement notice on 1 December 2023 requiring removal of the unauthorized structures and cessation of residential use, with compliance required within six months.
Ms. Ermis appealed to the Secretary of State on three grounds: that planning permission ought to be granted for the breach; that enforcement was time-barred under section 171B of the Town and Country Planning Act 1990 (which bars enforcement for change of use to residential after four years of continuous use); and that six months was insufficient for compliance. An Inspector appointed by the Secretary of State dismissed the appeals on the first and second grounds but extended the compliance period to twelve months, recognizing current occupation.
Ms. Ermis then sought judicial review in the High Court on two grounds: that the Inspector failed to give adequate and intelligible reasons for dismissing the time-bar defense, and that the Inspector erred in law regarding the continuation of assured shorthold tenancy agreements.
The Court’s Holding
Deputy High Court Judge Jonathan Moffett KC conducted a detailed review of the Inspector’s decision letter and reasoning. The critical issue was whether Ms. Ermis had proven on the balance of probabilities that the flat had been in continuous residential use for at least four years immediately preceding 1 December 2023—the date on which the enforcement notice was issued. Under section 171B(2) of the Town and Country Planning Act 1990, no enforcement action may be taken after four years beginning with the date of breach involving change of use to a dwelling.
The Inspector applied the evidentiary standard set out in the Secretary of State’s Planning Practice Guidance on Certificates of Lawful Existing Use or Development, requiring that an appellant’s evidence be “sufficiently precise and unambiguous” to justify granting relief on the balance of probability, particularly where the local authority has little evidence to contradict the appellant’s account. Ms. Ermis had submitted five assured shorthold tenancy agreements, statutory declarations, and testimony regarding occupancy from 2019 onward. However, the Inspector found deficiencies: one tenancy was dated before the flat existed (2018); several agreements referred to an adjacent property (“Kenbury Mansions”) rather than the subject property; the second tenancy lacked signatures; and there was an unexplained 18-month gap (December 2020 to July 2022) with no tenancy documentation, despite patterns showing ASTs were being used throughout the relevant period.
The court examined whether the Inspector’s conclusion that the evidence did not meet the requisite standard of precision and ambiguity was adequately reasoned and whether the Inspector properly applied the law regarding how assured shorthold tenancies continue beyond their initial fixed term.
Key Takeaways
- The four-year time bar for planning enforcement against change of use to residential dwelling is a critical statutory defense that shifts the burden to the property owner to prove continuous use.
- Under planning guidance, evidence establishing continuous use need only be “sufficiently” precise and unambiguous—not free from all imprecision—to discharge the burden of proof on the balance of probabilities.
- Defects in documentary evidence (wrong addresses, missing signatures, unexplained gaps in tenancy records) may justify an Inspector’s finding that the appellant has not met the evidentiary threshold, provided adequate reasons are given.
- The High Court reviews adequacy of reasoning in planning decisions against the familiar Bloor Homes standard: reasons must be intelligible and enable understanding of how the principal controversial issues were resolved, but need not be exhaustive or rehash every argument.
Why It Matters
This case clarifies the evidentiary standards governing the time-bar defense to planning enforcement notices. Property owners and developers rely on the four-year continuous-use period as a route to regularize unauthorized development, but must present clear, coherent documentary evidence of occupation. Gaps in tenancy records, address discrepancies, and documentary irregularities may be fatal to such a defense, even if the owner can point to actual occupation by successive tenants.
The decision also reinforces judicial restraint in reviewing planning inspectors’ decisions. While the High Court has jurisdiction to examine whether an Inspector applied the correct legal test and gave adequate reasons, it will not reweigh evidence or substitute its assessment of witness credibility and documentary reliability for the Inspector’s factual findings. The case thus delineates the boundary between appellable errors (misstatement of legal tests, unintelligible reasoning) and non-reviewable planning judgments (weight of evidence, credibility assessments).