Advice

IN THE MATTER OF LAND AT THE CROWN AND CUSHION PUBLIC HOUSE, WEST STREET, GREAT GRANSDEN, CAMBRIDGESHIRE SG19 3AT

ADVICE ON MATERIAL CHANGE OF USE:

INTRODUCTION:

1. I am asked to advise the “Open the Crown and Cushion Committee” (‘OTCC’) as to use of the land and building known as the Crown and Cushion Public House, West Street, Great Gransden, Cambridgeshire (‘the Pub’).

2. The lawful use of the Pub is as a sui generis public house. The Pub was listed as an Asset of Community Value (‘ACV’) on 25th July 2018 pursuant to the various provisions of the Localism Act 2011 and regulations thereunder by Huntingdonshire District Council (‘the LPA’). That listing will expire on 25th July 2023.

3. I understand that the Pub ceased trading at the start of covid restrictions being imposed on 20th March 2020. It has never reopened. I understand that the current owners lived in the Pub prior to its closure and have continued to live in the Pub throughout. It is understood by OTCC that the owners have no intention of reopening the Pub as they are of the view that it cannot trade at profit and are not prepared to subsidise its future operation.

4. Policy LP22 of the Huntingdonshire Local Plan (adopted 2019) seeks to prevent the loss of “local services and community facilities” (which include public houses):

"LP 22 Local Services and Community Facilities:
Local services and community facilities include, but are not limited to, shops, public houses, places of worship, cemeteries, health centres, libraries, fuel filling stations and public halls.

[...]

Where permitted development rights do not apply a proposal which involves the loss of a local service or community facility will only be supported where:

d. an equivalent service or community facility will be provided in a location with an equal or better level of accessibility for the community it is intended to serve; or

e. it demonstrates that there is no reasonable prospect of that service or facility being retained or restored because either:

i. there is insufficient community support for its continuation; or

ii. reasonable steps have been taken to effectively market the property for its current use without success.”

5. This is reflective of the emphasis in national policy on the retention of accessible local services and community facilities (such as public houses) found at paragraph 84 of the Framework.

6. OTCC’s concern is that the owners, who continue to live at the Pub and have done for some two years to date without the Pub operating as a public house, are seeking to secure use of the Pub as a single dwellinghouse through a material change of use of the same, thereby avoiding the policy restrictions imposed by policy LP22 and the Framework, and the effects of the ACV listing.

RELEVANT LAW

7. Section 171B(2) of the Town and Country Planning Act 1990 (‘the Act’) provides that:

“(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.”

8. Once the relevant period under s171B(2) has passed, it would be possible to certify the ‘new’ residential use as being the lawful use by way of a certificate of lawfulness pursuant to s191 of the Act. The decision on whether to grant a certificate or not does not engage questions of acceptability in policy, merely whether the breach of planning controls (here in the form of a material change of use to use as a single dwellinghouse) has persisted for more than four years.

9. The Act defines “taking enforcement action” as being either or both of:

1. Issuing an enforcement notice (s171A(2)(a)); or
2. Service of a breach of condition notice (s171A(2)(b))

10. No other step constitutes ‘taking enforcement action’. So (for example) service of an injunction pursuant to s187B of the Act does not constitute ‘taking enforcement action’ and neither does service of a Planning Contravention Notice pursuant to s171C of the Act.

11. The relevant test to apply to the question of breach is a single test, namely, whether there has been a continuous breach by use as a single dwelling, such that the planning authority could have enforced against the breach (Islington Borough Council v. Secretary of State for Communities and Local Government and Maxwell Estates Ltd [2019] EWHC 2691 (Admin) at 36 per Lang J). Whether or not the test is satisfied depends on the facts of the particular case.

BACKGROUND FACTS

12. As set out above the lawful use of the Pub is as a sui generis public house. That would include some degree of residential use of the Pub as ancillary to the primary use as a public house – it would be a perfectly ordinary component part of the use of a public house that it had rooms in which the publican and their family might live, in connection with their operation of the public house.

13. The Pub has not operated as a public house since 20th March 2020 when covid measures resulted in its closure. The owners have continued to reside in the Pub throughout.

14. The relevant questions are then:

1. Has there been a material change of use of the Pub from a sui generis public
   house to a dwellinghouse? and
2. If so when did that occur?

MATERIAL CHANGE OF USE

15. I understand that the LPA have issued a Planning Contravention Notice (pursuant to s171C of the Act, which (as above) does not constitute ‘taking enforcement action’ for the purposes of time limits under s171B) and I understand that a reply has been made to that PCN. I have not seen the response provided. The LPA however declare themselves satisfied that no material change of use of the Pub has occurred.

16. I observe in passing that if false or incorrect information is provided in response to a PCN, that in itself is not necessarily enough to enable the LPA to claim deliberate concealment and thereby seek to extend any period for the taking of enforcement action.

17. I have been provided with details of observations of the Pub made by local residents. These include:

a. Over the last 12 months that the occupants have been hanging clothes to dry in the former public bar area, with children’s toys throughout the former public bar areas;

1. A large television having been set up in the former public bar area with what is described as the ‘higher’ bar area being used as a living room and the ‘lower’ area being used throughout Christmas to site the family’s Christmas tree and living room through the Christmas period;
2. A large sofa being placed in the former public bar area (having replaced a number of small tables and chairs previously there) with a television placed for watching from the sofa (and which would present the rear of the television to anyone at the bar);
3. The fitting of blackout curtains on the lower levels to reduce the visibility of lights and usage of the ground floor of the Pub in the evening; and
4. Removal of the pub’s signage and sealing up of the car park with fences and gates to preclude public access and create a domestic form of curtilage.

18. Taking these matters together it appears to me likely that there has been a material change of use of the Pub from a sui generis public house to a single dwellinghouse. The Pub is being used as a single dwellinghouse and the residential use of the same appears to extend into areas which would previously have been used as a public house and not for residential purposes. The removal of the signage and closure of the car park with fencing and gates so as to replicate a domestic curtilage and garden area is indicative of a residential use and puts those areas (previously publicly accessible as part of the public house use) into a private residential use.

19. Moreover the current residential use is no longer ancillary to a public house use, since there is no public house use and there has not been for some time. The residential use is now the sole primary use of the Pub (as a single dwellinghouse) and this extends to the entire building and site with no discernible element of public house use remaining. I have no instructions as to whether the bar fixtures and fittings (pumps, lines etc) remain in situ but even if they are present they are

not being used in any public house use. If these fixtures and fittings have been stripped from the Pub that would provide considerable further support for a material change of use having occurred.

20. The next question then is when the material change of use can properly be said to have occurred. The most concrete and obvious date is 20th March 2020 when the public house closed. In my view that may not be the date on which the material change of use to a single dwellinghouse occurred since at that point the closure pursuant to lockdown measures may simply have been that, and that the material change of use occurred at some later point (for example the removal of signs and enclosure of the car park/garden with fencing and gates, or if fixtures and fittings have been removed, on that date).

21. The relevant date will be, per Maxwell Estates above, that date at which the LPA could have pursued enforcement action as defined at s171A of the Act (issuing an enforcement notice or serving a breach of condition notice). In my view that is likely to be some point after closure on 20th March 2020 and around the time of works to remove or preclude the public house use.

NEXT STEPS

22. As observed by the High Court in Ardagh Glass Ltd v. Chester City Council [2009] EWHC 745 (Admin) it would be a betrayal by the planning authorities of their responsibilities and a disgrace upon the proper planning of this country if development were to achieve immunity because enforcement action was not taken in time (at 46 per HHJ Mole KC sitting as a Deputy Judge of the High Court). While on my analysis above immunity for the single dwellinghouse will not have accrued yet, it is in my view incumbent on the LPA to investigate the current use(s) of the Pub properly and timeously and, if I am correct that a material change of use has occurred, to pursue appropriate courses of action having considered the expediency of the same.

23. It would seem to me to be wholly inappropriate for the use of the Pub as a single dwellinghouse to achieve lawfulness because of any misapprehension or

misunderstanding on the part of the LPA, and particularly so given local and national policy drivers towards the retention of community facilities such as public houses which are known to be susceptible to residential conversion (whether lawfully or otherwise). It is unclear to me on the facts available on what basis the LPA believe there to be a continuing public house use of the site to which the residential use is ancillary.

SCOTT STEMP 

26th March 2023

No5 Chambers 

LONDON – BIRMINGHAM – BRISTOL