Planning authorities’ preference to see bathrooms and kitchens removed from unauthorised dwellings is easily understood; without these facilities it is unlikely that occupation will continue. However, an inspector dealing with an appeal against an enforcement notice directed at the unauthorised use of an outbuilding in the garden of a house in Oxford as a separate dwelling has deleted the requirement to remove its bathroom facilities as it would exceed what was necessary to remedy the breach of planning control (DCS Number 400-011-382).
The inspector pointed out that bathroom facilities are not uncommon features in ancillary or incidental outbuildings and there was nothing to doubt the appellant’s contention that the bathroom facilities were provided long before the more recent unauthorised change of use to use as a single dwellinghouse. The bathroom facilities would be lawful if the building remained in use for purposes ancillary or incidental to the main dwelling.
The inspector recorded that case law establishes that where a notice is issued alleging a material change of use, and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use.
He determined that the council’s concern about a future resumption of the breach did not provide a legitimate reason for requiring the removal of the bathroom facilities since Section 181 of the Act states that compliance with an enforcement notice shall not discharge the notice. The council could therefore take immediate enforcement action to prosecute the notice if the unauthorised use were to later resume.
It strikes us that this is one of those situations where effective enforcement relies on the monitoring of human behaviour rather than the recording of physical works (not unlike the situation in Outside play at nursery – whether condition enforceable); a difficult, if not impossible task. Given that ineffective enforcement is one of the best ways to undermine public confidence in the planning system there must be a better way. Sorry to say it, but maybe this needs amended legislation.
The following DCP chapter is relevant: 10.2