Matthew Bramall v (1) Secretary of State for Communities & Local Government (2) Rother District Council (2011)

This recent case turned on rules going back to the 1947 Town and Country Planning Act but involved an important issue; whether a planning inspector had been right to conclude that a residential use had been abandoned.

The cottage in question had been declared unfit for habitation in 1955 and then used, under a temporary planning permission, as a poultry house. After 1961 it does not appear to have been used for anything. It was argued that between 1961 and 2008, three applications for replacement dwellings had been made and that the cottage had never ceased to be considered as having a residential user by its various owners. The application for a certificate of lawfulness to establish residential user in 2008 was, however, refused.

On appeal, the inspector concluded that there was no evidence of continuous intention so as to avoid a conclusion that the residential user had been abandoned. His decision was upheld by the court which found he had not failed to take into account considerations such as the sporadic spending of money on the property.

If you are having to establish that a use has been continuing for a certain time or that a long user has not been abandoned, make sure that the evidence is convincing and there are no obvious "gaps". If there are, the courts are unlikely to uphold a judicial challenge based on arguments that the appeal inspector has incorrectly read the facts.