Lights, camera, action!

Though it might appear that it’s all glamour in town planning those of us in the business understand that there is a lot of technical know-how involved behind the scenes. An appeal case concerning the refusal of a certificate of lawfulness for the use of a property in south London for a mixed use as a dwelling and a photoshoot and film location (DCS Number 400-015-391) illustrates the point. In this case the inspector considered whether the use had achieved immunity from enforcement action.

The house had been constructed in the 1960s and was complete with original fixtures, fittings and decoration typical of the period. Because of its originality and décor, the appellant had been able to offer the property for use as a film shoot location in conjunction with its primary use as a family home, and had done so at various intervals since February 2005. It was only in October 2015 that the council advised, after complaints by nearby residents, that a material change of use had occurred.

The inspector explained that in Secretary of State for the Environment, Transport and the Regions v Thurrock BC [2002], it was established that for an unlawful use to obtain immunity from enforcement action, it has to be exercised continually and without significant interruption for the whole of the relevant time period. He acknowledged that a mixed use had occurred since 2005, but judged that it had been intermittent, there having been significant gaps in the use of the property for simultaneous use as a dwelling house and as a photo shoot location. In particular, the council referred to three periods of four months, three months and five months when the photoshoot activities did not take place. The inspector further explained that the court had rejected the notion that time (for the purpose of the four- or ten-year rule) could continue to run where a use (or mixed use) became dormant for long periods. In the case before him the mixed use of dwelling and photo shoot location was dormant not just for the significant periods referred to by the council, but for noticeable periods each month when the property reverted to its residential use only.

The court had also held, the inspector continued, that the legally correct question to ask was whether a building had been used throughout the whole of the relevant period so that, at any time during that period, the council could have taken enforcement action. The appellant argued that the council could have taken enforcement action at any time during which the mixed use was taking place. The inspector agreed that this was the case; the council could have taken action the first time that the change of use occurred and any time after that when each photoshoot use was being carried out. He reasoned, however, that the situation had alternated between a single use and a mixed use, and that each time a photoshoot took place a breach of planning control had occurred.

The inspector concluded that the mixed use was intermittent and that, as a matter of fact and degree, it was not a continuous mixed use for the whole of the relevant period. Therefore, the appellant had not shown that the mixed use had been continuous for the necessary ten-year period and it followed that a certificate of lawfulness should not be issued.

The following DCP section is relevant: 4.535

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