Sentinel Estates Limited v Secretary of State for Housing, Communities and Local Government & Anor

In this case Sentinel Estates Limited (“the Appellant”) appeals against a decision by an Inspector appointed by the Secretary of State for Housing, Communities and Local Government (“the First Respondent”) to vary the time for compliance but otherwise uphold an enforcement notice issued by the London Borough of Brent (“the Second Respondent”).

By an order dated 5^th December 2025 Dan Kolinsky KC (sitting as a Deputy High Court Judge) granted leave to bring this appeal (pursuant to section 289(6) of the Town and Country Planning Act 1990 (“TCPA 1990”)).

On 23^rd January 2020 the Second Respondent issued an enforcement notice (“the 2020 EN”). The enforcement notice related to land at 27, Pembroke Road, Wembley, HA9 7PD (“the Site”). The breach of planning control alleged in the notice was “Without planning permission, the material change of use of the premises to a House in Multiple Occupation (HMO) and flats”. The reasons for issuing the 2020 EN included the following:

“It appears to the Council that the unauthorised change of use took place within the last 10 years.

…

The unauthorised change of use results in the loss of a purpose-built, family dwelling within the borough, and fails to re-provide family sized accommodation within the conversion scheme. …”

The Appellant appealed against the 2020 EN on grounds (a), (b), (c) and (f) as set out in section 174(2) of the TCPA 1990. By a decision letter dated 11^th April 2022 an Inspector appointed by the First Respondent allowed the appeal on ground (b) and quashed the enforcement notice. The Inspector found, as a matter of fact, that the allegation of a mixed use of house in multiple occupation (“HMO”) and flats set out in the enforcement notice was incorrect as the house was being used as an HMO.

On the 31^st March 2023 the Second Respondent issued a further enforcement notice (“the 2023 EN”). The 2023 EN related to the Site. The breach of planning control alleged was: “Without planning permission, the material change of use of the premises from TWO flats to a House in Multiple Occupation (HMO).”

The reasons stated for issuing the 2023 EN were:

“It appears to the Council that the unauthorised change of use took place within the last 10 years.

The unauthorised change of use causes material harm to residential amenities of the occupiers and neighbouring premises, by virtue of increased comings and goings and levels of noise and disturbance. Furthermore, the unauthorised change of use results in the loss of two family dwellings within the Borough.

The unauthorised change of use amounts to substandard development and not the high quality residential development that Brent's policies envisage. This is to the detriment of the occupiers of the premises and the Borough in general. It is, therefore, contrary to the objectives of National Planning Policy Framework, 2021, policies DMP1, BH7, BH10, BH11 and BH13 of Brent's Local Plan, 2022, and paragraphs 5.20, 5.22 and 5.30 of the Houses in Multiple Occupation Supplementary Planning Document, 2022.”

The Appellant appealed against the 2023 EN on grounds (a), (c), (d), (f) and (g). The Appellant’s Grounds of Appeal (which were produced on its behalf by the planning consultants it had instructed, UPP) included a section headed ‘Legal Background’. In that section the Appellant cited section 171B(2) of the TCPA 1990, and at paragraph 2.5 stated: “Therefore, if it can be shown on the balance of probabilities that the development has subsisted for a four-year period, no enforcement action may be taken.”

The Appellant submitted a Statement of Case (produced by UPP) in connection with its appeal against the 2023 EN. The Legal Background section, as set out in the Grounds of Appeal, was repeated (including paragraph 2.5).

The Appellant contended that the Site had been in use as an HMO since 2016/2017.

The Second Respondent served a Statement of Case which included the following:

“1.3

There is an error in the reasons for issuing the notice, which refers to “the loss of two family dwellings”. This should refer to the loss of a single family-sized dwelling.

…

Ground d that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

4.7

The appellant’s reasoning appears to relate to ground (c). The Council accepts that the change of use to HMO occurred in June 2016, before the Article 4 direction came into force, and there is no suggestion the Article 4 is retrospective, but use as a HMO is subject to the 10 year rule (s171B(3)).

4.8

The appellant produces no evidence that the breach of planning control occurred before 31 March 2013 or 23 January 2010 if s171B(4)(b) applies.

…”

The Appellant submitted a response to the Second Respondent’s Statement of Case (produced by UPP) which included the following:

“The LPA is confusing two different elements in paragraph 4.7. A property could be lawfully changed from C3 to C4 prior to the Article 4 direction being implemented but in order to obtain a Certificate of Lawfulness for Existing Use or Development there needs to be 10 years of evidence. The appellant is claiming the former and therefore the change of use from C3 to C4 constituted permitted development at the time it was implemented. The appellant is aware that if they wanted to obtain a CLEUD they would require continuous and uninterrupted evidence for a period of 10 years.”

The Second Respondent produced ‘Final Comments’ in response to the Appellant’s Statement of Case. The Final Comments included the following:

“The appellant does not address the “second bite” provision arising from the enforcement notice issued 23 January 2020 and quashed 11 April 2022 (LPA Appendix 7).”

By a decision letter dated 27^th May 2025 (“the DL”) the Inspector appointed by the First Respondent varied the period for compliance from three to six months, and upheld the enforcement notice. The inspector considered the ground (d) appeal at paragraph 9 of the DL:

“9.

On the appellant company’s own evidence, this ground of challenge is doomed to fail. Both appeal parties accept that the alleged HMO use commenced in 2016, which is confirmed by a survey of the property done in January 2020. Moreover, evidence submitted with the previous appeal by existing residents confirms the property has always been in use as an HMO since 2016. Thus, the 10-year period required to achieve immunity cannot be satisfied. This is because the evidence does not clearly and unambiguously show that the HMO use commenced on or before 31 March 2013, which is the relevant date. The position is worse if the second bite provisions⁴ apply to the notice before me as the relevant date would then be 23 January 2010. The evidence presented does not show, on the balance of probabilities, that the alleged use is immune from enforcement action by reason of immunity. Ground (d) must fail.”

The First Respondent argues that a withdrawn Government Circular, in particular paragraph 2.81 of Annex 2 to Circular 10/97 should be afforded significant persuasive weight. Paragraph 2.81 states:

“Interpretation of "use as a single dwelling house"

2.81

It is important to distinguish the term "use as a single dwellinghouse", in section 171 B(2), from what might normally be regarded as being a single dwellinghouse.

…

It is considered that the criteria for determining use as a single dwellinghouse include both the physical condition of the premises and the manner of the use. Where a single, self-contained set of premises comprises a unit of occupation, which can be regarded as a separate "planning unit" from any other part of a building containing them; are designed or adapted for residential purposes, containing the normal facilities for cooking, eating and sleeping associated with use as a dwellinghouse; and are used as a dwelling, whether permanently or temporarily, by a single person or more than one person living together as, or like, a single family, those premises can properly be regarded as being in use as a single dwellinghouse for the purposes of the Act. This interpretation would exclude such uses as bed-sitting room accommodation, where the occupants share some communal facilities within a building, such as a bathroom or lavatory, and the "planning unit" is likely to be the whole building, in use for the purposes of multiple residential occupation, rather than each individual unit of accommodation.”

The First Respondent also draws attention to the Planning Inspectorate’s Training Manual (“the Manual”). The Manual is not made available to the public, however from time to time versions of the Manual have been released in response to freedom of information requests. Paragraph 608 of the Manual states:

“608.

However, s171B(2) does not apply in cases where there has been a change of use to an HMO or some other residential use where units are not self-contained³¹⁴. Even if there has been a MCU to a use within class C4, that is, 'use of a dwellinghouse ... as a' HMO, there will not have been a change of use to a single dwellinghouse.”…

314 See [1997] JPL 371, where a bed-sitting room which did not have exclusive use of a WC was held not to be a flat and therefore not used as a dwellinghouse.”

The Appellant challenges the First Respondent’s decision on the following ground:

“Ground 1: the Inspector erred by applying the wrong immunity period, applying a 10-year period, rather than the 4-year period under section 171B(2) (before it was amended by the Levelling Up and Regeneration Act 2023) which should have applied, and which would have led to the appeal being allowed on ground (d).”

Section 55 of the TCPA 1990 defines the term “development”. Section 55(3)(a) provides:

“(3)

For the avoidance of doubt it is hereby declared that for the purposes of this section—

(a)

the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used;”

Section 55(3)(a) is concerned with changes from use as a single dwellinghouse.

The breach of planning control alleged in this case occurred before the amendments made by section 115 of the Levelling-up and Regeneration Act 2023 (“LURA 2023”) to Section 171B of the TCPA 1990 took effect (Regulation 5 of The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024). The amendments made by LURA 2023 change the period after which no enforcement action may be taken (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 in England) from four years to ten years.

Section 171B of the TCPA 1990 as applicable in this case and so far as is relevant, provides:

“171B Time limits.

(1)

…

(2)

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

…

(4)

The preceding subsections do not prevent—

(a)

…; or

(b)

taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach.”

Section 174 TCPA 1990 provides:

“174.

— Appeal against enforcement notice.

(1)

A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.

(2)

An appeal may be brought on any of the following grounds—

(a)

that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b)

that those matters have not occurred;

(c)

that those matters (if they occurred) do not constitute a breach of planning control;

(d)

that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e)

that copies of the enforcement notice were not served as required by section 172;

(f)

that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g)

that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.

…”

Section 289(1) of the TCPA 1990 provides:

“289.

— Appeals to High Court relating to enforcement notices and notices under sections 207 and 215

(1)

Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.”

The classes specified in the Schedule to the Town and Country Planning (Use Classes) Order 1987 (“the UCO”) include:

“Class C3. Dwellinghouses

Use as a dwellinghouse (whether or not as a sole or main residence) by—

(a)

a single person or by people to be regarded as forming a single household;

(b)

not more than six residents living together as a single household where care is provided for residents; or

(c)

not more than six residents living together as a single household where no care is provided to residents (other than a use within Class C4).

Interpretation of Class C3

For the purposes of Class C3(a) “single household” shall be construed in accordance with section 258 of the Housing Act 2004.”

Class C4. Houses in multiple occupation

Use of a dwellinghouse by not more than six residents as a “house in multiple occupation”.

Interpretation of Class C4

For the purposes of Class C4 a “house in multiple occupation” does not include a converted block of flats to which section 257 of the Housing Act 2004 applies but otherwise has the same meaning as in section 254 of the Housing Act 2004.”

Class L of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) provides:

“Class L – small HMOs to dwellinghouses and vice versa

Permitted development

L. Development consisting of a change of use of a building—

(a)

from a use falling within Class C4 (houses in multiple occupation) of the Schedule to the Use Classes Order, to a use falling within Class C3 (dwellinghouses) of that Schedule;

(b)

from a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order, to a use falling within Class C4 (houses in multiple occupation) of that Schedule.

Development not permitted

L.1 Development is not permitted by Class L if it would result in the use—

(a)

as two or more separate dwellinghouses falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order of any building previously used as a single dwellinghouse falling within Class C4 (houses in multiple occupation) of that Schedule; or

(b)

as two or more separate dwellinghouses falling within Class C4 (houses in multiple occupation) of that Schedule of any building previously used as a single dwellinghouse falling within Class C3 (dwellinghouses) of that Schedule.

In R v. Secretary of State for the Environment ex parte Spath Holme Ltd [2001] 2 AC 349 at page 396 Lord Nicholls described the approach to be taken when interpreting the words used in a statute:

“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the "intention of Parliament" is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used.”

At page 399 in Spath Holme Lord Nicholls considered the role that government statements can play as an aid to interpretation:

“If, however, the statements are clear, and were made by a minister or other promoter of the Bill, they qualify as an external aid. In such a case the statements are a factor the court will take into account in construing legislation which is ambiguous or obscure or productive of absurdity. They are then as much part of the background to the legislation as, say, Government white papers. They are part of the legislative background, but they are no more than this. This cannot be emphasised too strongly. Government statements, however they are made and however explicit they may be, cannot control the meaning of an Act of Parliament. As with other extraneous material, it is for the court, when determining what was the intention of Parliament in using the words in question, to decide how much importance, or weight, if any, should be attached to a Government statement. The weight will depend on all the circumstances. For instance, the statement might conflict with the principle of interpretation that penal legislation is to be construed strictly.”

In R (PACCAR Inc and Others) v. Competition Appeal Tribunal [2023] 1 WLR 2594 Lord Sales identified the relevant interpretative principles at paragraphs 40-48. At paragraph 41 Lord Sales referred to the fact that there are numerous authoritative statements in modern case law which emphasise the central importance in interpreting any legislation of identifying its purpose.

The point at issue in the Court of Appeal in the case of Doncaster BC and Van Dyck v. Secretary of State for the Environment [1993] 66 P & CR 61 (“Van Dyck”) was identified by Simon Brown LJ at page 63:

“Does the immunity from enforcement notice proceedings after four years provided by section 172(4)(c) (hereafter called the four year rule) apply equally to a breach of planning control consisting of the change of use without planning permission of a single dwellinghouse into two (or more) separate dwelling-houses (hereafter called subdivision) as to the unpermitted use of a building as a single dwelling-house? The appellants (including the Secretary of State in the Doncaster appeal) submit that it does; Doncaster Borough Council submit not.”

Section 172(4)(c) as considered in Van Dyck provided:

“(4)

An enforcement notice which relates to a breach of planning control consisting in—

(a)

…

; or

(c)

the making without planning permission of a change of use of any building to use as a single dwellinghouse; or

(d)

…

may be issued only within the period of four years from the date of the breach.”

Simon Brown LJ (with whom the other members of the court agreed) divided his judgment into two chapters. Chapter I was written before the House of Lords made their decision in Pepper v. Hart [1992] 3 WLR 1032. The conclusion reached at the end of Chapter I (at page 73) was:

“Although I do not pretend to have found this an easy problem to resolve, I have finally come to accept the appellants' central argument. Section 172(4)(c) is, I believe, capable of being construed and applied so as to benefit all new separate residences after four years. That being so, having regard to the broad policy which I conceive to underlie this provision, in my judgment it should be thus construed and applied.”

The broad policy to which Simon Brown LJ referred was Parliament’s desire to protect long established residential occupation.

In Chapter II Simon Brown LJ considered the Hansard Report of a debate held in Parliament on 22^nd May 1968 when the Minister of Housing and Local Government promoted an amendment to the Town and Country Planning Bill. That amendment eventually became section 172(4)(c) of the TCPA 1990 (as considered in Van Dyck). Simon Brown LJ quoted extensively from the Parliamentary debate, including a passage in which the Minister made a reference to the provisions of what is now section 55(3)(a) of the TCPA 1990, and then said: “It already is a breach of planning control to convert from a single dwelling-house to a multiple dwelling-house, and for the social reasons I have outlined I suggest that it would be wise not to subject such a breach to the constraint of the four-year rule.” Simon Brown LJ came to the following conclusion (at page 74):

“I certainly do not find in this crucial passage the clarity for which Pepper v. Hart requires us to search, still less a clear statement directed to the very matter in issue; the application or otherwise of the four year rule not merely to multi-occupation generally but to subdivision into separate flats in particular.”

The issue under consideration in the Court of Appeal in the case of Arun District Council v. First Secretary of State [2007] 1 WLR 523 was identified by Auld LJ at paragraph 1, namely:

“… a narrow but important point of construction as to the applicable time limit in the Town and Country Planning Act 1990 governing enforcement action for breach of planning control in the form of failure to comply with a condition of planning permission restricting change of use to use as a single dwelling house, namely whether it is four years from the date of the breach, pursuant to section 171B(2), or ten years, pursuant to section 171B(3), of the Act.”

The policy that lay behind the provision was identified by Auld LJ at paragraph 5:

“5 The rationale for the different periods of limitation according to the nature of the breach of planning control was to impose a shorter period, four years, where it was considered that a longer period could cause serious loss and/or hardship in the event of enforcement proceedings long after the event, including in the case of homeowners loss of their homes, and ten years for any other breach of planning control.”

Auld LJ came to the following conclusion (at paragraph 33):

“33 In my view, the breach of planning control by Mrs Brown falls squarely within the words of section 171B(2), and is, therefore, enforceable for a period of four years only after the breach. Prior to 1996 the extension was used for a purpose ancillary to the house. From 1996 its use changed to independent use as student accommodation. By virtue of section 55(3)(a) of the 1990 Act (see para 2 above) that change constituted a material change of use, and was therefore development without planning permission within the meaning of section 171A(1)(a) and/or it was a breach of condition of the permission within the meaning of section 171A(1)(b). Either way, it was clearly a “breach of planning control” consisting in “the change of the use” of the extension from a residential use which was ancillary to and part of the main dwelling, to use as a separate single dwelling house within the meaning of section 171B(2).”

Carnwath LJ (as he then was) agreed with Auld LJ that the appeal should be allowed. At paragraph 49 Carnwath LJ said that the reference in section 171B(2) to a “breach of planning control” is naturally read as including carrying out development without the required planning permission or failing to comply with a condition.

In considering the question of whether a building is a ‘dwellinghouse’ when considering planning legislation the principles derived from Gravesham BC v. Secretary of State for the Environment (1984) 47 P&CR 142 at page 146 apply, namely that the distinctive characteristic of a dwellinghouse is its ability to afford to those who use it the facilities required for day-to-day private domestic existence.

In London Borough of Brent v. Secretary of State for Levelling-up Housing and Communities [2022] EWHC 2051 Robert Palmer QC (sitting as a Deputy High Court Judge) identified the point at issue at paragraph 4:

“The main issue between the parties concerns whether the Inspector was right to proceed on the basis that a dwellinghouse in use as a “house in multiple occupation” (“HMO”) within the meaning of Use Class C4 of the Town and Country Planning (Use Classes) Order 1987 (SI 1986/764) (“the Use Classes Order”) is necessarily also a “dwellinghouse” within the meaning of the GPDO.”

At paragraph 58 in Brent the judge, having referred to Blackpool Borough Council v Secretary of State for the Environment (1980) 40 P&CR 104, said:

“This conclusion did not entail any finding that a dwellinghouse must be occupied by one family or household if it is to retain its status as a “dwellinghouse” (for the purposes of the GPDO or otherwise) as a matter of law: the Court was merely considering whether the Inspector had reached a factual finding to which he was entitled to come, concerning the nature of the use to which the dwellinghouse was being put, and whether it materially differed from its permitted use.”

At paragraph 70 the judge held that for a building to fall within either use class C3 or C4 it must be both a dwellinghouse and be used in one of the ways specified in each class.

In Jarmain v. Secretary of State for the Environment [2000] JPL 1063 the Court of Appeal upheld the first instance judgment of Nigel Macleod QC (sitting as a Deputy High Court Judge) in which he had said (as cited at page 1069):

“It is the subject matter of the enforcement notice, the actual development which is being referred to by the words that breach, rather than the words which have been used to characterise the development which itself constitutes the breach of planning control. The description of a breach cannot in itself be a breach of planning control. What this proper interpretation means is that the sub-section cannot be used to cover two different physical developments or two different changes of use, but it can be used to cover the same actual breach of development control which is described in different ways.”

The principles to be applied where a party seeks to raise a new point on appeal which was not raised below were summarised by Haddon-Cave LJ (with whom the other members of the Court of Appeal agreed) in Singh v. Dass [2019] EWCA Civ 360:

“16.

First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

17.

Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).

18.

Third, even where the point might be considered a ‘pure point of law’, the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] R.T.R. 22 at [29]).”

Mr Streeten and Mr Welch, for the Appellant, submitted:

In his reply, Mr Streeten submitted:

Mr Fullbrook and Ms McCormack, for the First Respondent, submitted:

The following arguments were advanced in relation to relief:

The following issues fall to be considered:

The question of whether a new point can be taken is fact sensitive. As Holgate J said (at paragraph 77) in Barker Mill it is necessary to examine the nature of the new point sought to be raised in the context of the process which was followed up to the decision under challenge.

The first issue to determine is whether the argument now raised (that the four year rule set out in section 171B(2) applies) is a new point.

In my judgment given the Appellant’s final position in the written documents submitted on its behalf was that the ten year rule applied to the specific facts of this case, advancing an argument in the appeal before this court that the four year period applies, is a new point.

As this case is an appeal to the High Court, the principles set out at paragraphs 16 to 18 in Singh v. Dass are to be applied in considering this issue.

This court should be cautious in allowing the new point to be raised.

The point in contention is whether change of use of a building to an HMO is to ‘use as a single dwellinghouse’ as referred to in section 171B(2) TCPA 1990. That is a point of statutory construction. If the point had been before the Inspector it would not have resulted in the appeal being conducted differently in relation to the evidence, as the evidence relating to when the Appellant acquired the Site, and the actions it took following acquisition (as referred to at paragraph 7 of the DL) was before the Inspector.

At paragraph 9 of the DL the Inspector said “The position is worse if the second bite provisions apply to the notice before me …”. The Inspector referred to but did not apply, the second bite provisions. If the Appellant had advanced an argument before the Inspector that the four year rule applied, it is likely that the Inspector would have had to consider and apply the ‘second bite’ provisions (in section 171B(4) TCPA 1990). Consideration of the second bite provisions would have required the parties to make submissions and for the Inspector to make a judgment on whether the 2020 EN and the 2023 EN covered the same actual breach of development control described in different ways (Jarmain at page 1069).

In my judgment it can be said that that point of statutory construction (as to the meaning and effect of section 171B(2) TCPA 1990) falls into the category of a ‘pure point of law’.

Although the statutory construction point is a pure point of law, the consequence of not advancing the argument that the four year rule applied in this case, raises questions of law and a judgment based upon facts. Consideration of the ‘second bite’ provisions would not fall into the category of a ‘pure point of law’. Consideration and application of the ‘second bite’ provisions would have required the Inspector to make a judgment based upon the evidence before him, in particular the 2020 EN and the 2023 EN. In that sense the proceedings before the Inspector would have been conducted differently as competing arguments on the application of the second bite provisions would have been advanced and considered. At paragraph 17 in Singh v. Dass Haddon-Cave LJ said that an appellate court will not, generally, permit a new point to be raised on appeal if “…or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at trial”.

When advancing arguments in relation to relief Mr Streeten contended that it would be for an Inspector to determine, as a matter of judgment, whether the 2020 EN and the 2023 EN described the same actual breach of development control. I agree that consideration of the ‘second bite’ provisions would have required the Inspector to consider, as a matter of judgment, whether the 2020 EN and the 2023 EN were directed at the same actual breach of development control. As a consequence, if the point now in issue had been raised before the inspector, the determination of the section 174 TCPA 1990 enforcement notice appeal would have been conducted differently, and it would have been necessary for an additional judgment to be made by the Inspector.

The fact that an additional judgment would have to have been made by the Inspector weighs strongly against allowing the point to be argued (Barker Mill at paragraph 77). There is a strong public interest in the finality of civil proceedings, including planning proceedings (Mead Realisations v. Secretary of State for Levelling-up Housing and Communities [2024] PTSR 1093 at paragraph 182). That additional judgment (which the Inspector would have been required to make) raises mixed questions of law and fact, and therefore would have resulted in the ‘trial’ (in this case a planning appeal) being conducted differently with regards to the evidence as the parties would have had to make submissions on fact and law to be considered by the Inspector. In that sense, and taking account of the characteristics of the enforcement notice appeal process, the circumstances fall within the category referred to at paragraph 17(b) in Singh v. Dass. Alternatively the circumstances fall into the category referred to at paragraph 77 in Barker Mill, namely where an additional judgment would have to be made by the inspector.

I have found that the argument raised in this court (that the four year rule created by section 171B(2) TCPA 1990 applies) is a new point which was not taken before the Inspector. I have found that if that point had been raised before the Inspector, the Second Respondent would have been able to raise the ‘second bite’ point, and the Inspector would have been required to reach an additional judgment in order to resolve that point. In my judgment, on the basis of those findings, the Appellant should not be allowed to raise the new point (that the four year rule created by section 171B(2) TCPA 1990 applies) in this appeal. On that basis, the appeal should be dismissed.

As the parties have argued the other points in issue, I have gone on to consider them, notwithstanding the fact that my decision on the ‘new point’ is sufficient to dispose of the appeal.

There is a dispute as to whether reference can be made to the Hansard Report of the debate on Clause 13 of the Town and Country Planning Bill which took place on 22^nd May 1968 in the House of Commons.

The principles to be applied are those set out by Lord Browne-Wilkinson at page 1061 E-F in Pepper v. Hart [1992] 3 WLR 1032:

“I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.”

The amendment moved by the Minister of Housing and Local Government (“the Minister”) included the following:

“(3)

Where an enforcement notice relates to a breach of planning control consisting in-

….

(c)

the making without planning permission of a change of use of any building to use as a single dwellinghouse,

it may be served only within the period of four years from the date of the breach.”

The statements made by the Minister included the following:

In Van Dyck the Court of Appeal were considering the meaning and effect of section 171B(2) TCPA 1990. Chapter II of Simon Brown LJ’s judgment considered whether reference could be made to the statement made by the Minister in the debate on the 22^nd May 1968. At page 75 Simon Brown LJ held that conditions (a) and (b) as set out in the speech of Lord Browne-Wilkinson in Pepper v. Hart were satisfied. Simon Brown LJ went on to consider whether condition (c) was satisfied. Simon Brown LJ set out his conclusions at page 76. He concluded (at points 1 and 2) that the Minister was not addressing breaches of planning control consisting of subdivision or even changes of use of part of a building. At his point 3, Simon Brown LJ reached the following conclusion:

“3.

The Minister's final remarks were necessarily extempore responses to various points raised by Mr. Rossi during the debate. Although I reject Mr. Newcombe's suggestion as unacceptably far-fetched-the suggestion that the Minister was invoking section 12(3) simply to justify his proposed use of the term "single dwelling-house" and, when referring to conversion "from a single dwelling-house to a multiple dwelling-house", was then intending to describe some quite different breach of planning control- I certainly do not find in this crucial passage the clarity for which Pepper v. Hart requires us to search, still less a clear statement directed to the very matter in issue.”

The passages to which Simon Brown LJ was referring included the Minister’s final remarks, being the statement at column 675.

The passages on which Mr Fullbrook seeks to rely includes the same passages as those considered in Van Dyck. Mr Fullbrook places particular reliance on the passage in column 665, and argues that the Minister’s statements were not directed to the matter in issue in Van Dyck (being subdivision) but that they were directed at the point in issue in this case, namely whether the words in paragraph (c) of the proposed amendment included a change of use to ‘multi-occupation’. I accept those submissions.

In my judgment it is clear from the passage at column 665 that by using the words “change of use of any building to use as a single dwellinghouse” as opposed to “residential use” (the wording put forward in the opposition amendment), the intention and purpose of the legislation was to exclude changes of use to multi-occupation from the benefit of the four year rule. The Minister identified change of use to use as a single dwelling house as benefiting from the four year rule. The Minister then explained the reasons for that provision, namely that changes of use to multi-occupation can have undesirable social as well as planning consequences. The Minister then said that he understood that there had been cases of this kind of development in which the four year rule had been a barrier, preventing planning authorities from exercising control.

For those reasons I conclude that, in relation to the point at issue in this case, the Ministerial statement is sufficiently clear to meet the Pepper v. Hart criterion, and is directed to the very matter at issue in this case. Therefore, in this case, it is permissible to refer to the Parliamentary material as a guide to the construction of section 171B(2) TCPA 1990.

Mr Streeten seeks to rely upon Paragraph L.1(a) of Class L of Part 3 of Schedule 2 to the GPDO as an aid to construing section 171B(2) TCPA 1990. Paragraph L.1(a) states:

“L.1 Development is not permitted by Class L if it would result in the use—

(a)

as two or more separate dwellinghouses falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order of any building previously used as a single dwellinghouse falling within Class C4 (houses in multiple occupation) of that Schedule; or”

Paragraph L.1 is found in a statutory instrument made in 2015.

Section 171B(2) TCPA 1990 was inserted into the TCPA 1990 by section 4(1) of the Planning and Compensation Act 1991. A provision having the same effect had been in force since the coming into effect of section 15(3)(c) of the Town and Country Planning Act 1968.

Delegated legislation, such as the GPDO, is made by the executive, whereas primary legislation is made by the legislature. It is for the courts to interpret legislation. By exercising its power to make delegated legislation the executive cannot alter the intention behind the enabling Act.

The editors of Bennion, Bailey and Norbury on Statutory Interpretation consider the use of delegated legislation as an aid to construing primary legislation inChapter 24.18 andstate that “…the courts have frequently stressed the need for delegated legislation to be roughly contemporaneous to be persuasive”. An example of the approach to be taken when the delegated legislation is not contemporaneous is provided by Dimond v. Lovell [2000] 1 QB 216 at paragraph 48, where Sir Richard Scott V-C said:

“But the Regulations of 1983 postdated the Act by some nine years and I do not think the content of the Regulations can be taken to be a guide to what Parliament intended by the language used in the Act.”

In this case the GPDO was made approximately 47 years after the enactment of section 15(3)(c) of the Town and Country Planning Act 1968. Given that Class L of Part 3 of Schedule 2 to the GPDO was not made contemporaneously with the enactment of Section 15(3)(c) of the 1968 Act or with the enactment of section 171B(2) of the TCPA 1990, but a considerable time after both those enactments I do not consider that it can be taken to be a guide as to what Parliament intended when it enacted section 171B(2) of the TCPA 1990.

Annex 2 to Circular 10/97 set out the Secretary of State’s advice on enforcement notices and appeals. Circular 10/97 was withdrawn following the introduction of the National Planning Policy Framework and associated Planning Practice Guidance.

At paragraph 2.81 of Annex 2 to Circular 10/97:

Guidance given by the Government, such as a code of practice, or circular is capable of providing some assistance as to the intended meaning of legislation. However such guidance should be treated with caution. (Ellis v. Bristol City Council [2007] EWCA Civ 685 at paragraph 33).

Good practice guidance does not cease to be that just because the document in which it is found is withdrawn (R (oao Rickards) v. East Hertfordshire DC [2025] EWHC 2278 (Admin) at paragraph 101).

In my judgment reference can be made to Annex 2 to Circular 10/97 as giving an indication of the Government’s view. However that guidance is persuasive at best and provides no definitive assistance in interpreting the legislation, or ascertaining its purpose.

The Manual is not a public document; it is provided for use by planning inspectors. The Manual sets out the views of the Planning Inspectorate.

In my judgment the Manual falls into the category of guidance given by the Government, such as a code of practice, and is therefore capable of providing some assistance as to the intended meaning of legislation. However such guidance should be treated with caution.

Paragraph 608 of the Manual, as set out at paragraph 15 above should be treated with great caution. The footnote to the first sentence refers to a ministerial decision on an appeal against a refusal to grant a certificate of lawfulness of existing use or development (reported at [1997] JPL 371). The basis of the appeal in that case was that a front ground floor room had been used as a self-contained flat for a period of four years prior to the application. It was held that the appellant had failed to establish that the room had all the facilities necessary to sustain day to day domestic existence, in particular a WC. The ministerial decision does not appear to support the proposition set out in the first sentence of paragraph 608 in the Manual.

Given those facts no assistance can be derived from the guidance given in paragraph 608 of the Manual when interpreting section 171B(2) TCPA 1990.

The 2023 EN alleged a material change of use from two flats to a house in multiple occupation.

At paragraph 54 in Brent, Robert Palmer QC considered the first issue in that case, namely whether a building is a ‘dwellinghouse’ for the purposes of planning law, and summarised the relevant principles derived from Gravesham and reaffirmed in subsequent cases. Having considered Blackpool Borough Council v Secretary of State for the Environment (1980) 40 P&CR 104, Robert Palmer QC said (at paragraph 58):

“This conclusion did not entail any finding that a dwellinghouse must be occupied by one family or household if it is to retain its status as a “dwellinghouse” (for the purposes of the GPDO or otherwise) as a matter of law: the Court was merely considering whether the Inspector had reached a factual finding to which he was entitled to come, concerning the nature of the use to which the dwellinghouse was being put, and whether it materially differed from its permitted use.”

At paragraph 70, Robert Palmer QC rejected the argument that people are to be regarded as forming a single household or who are living together as such can be imported into the definition of “dwellinghouse”. At paragraph 71 the judge said that his conclusion was consistent with the Planning Inspectorate’s guidance note, and that the guidance note reflects the fact that an HMO may be a dwellinghouse even if it is not in C4 use, and that it confirms that the Gravesham test must be applied to any HMO to determine whether it is in fact a dwellinghouse.

At paragraph 73 Robert Palmer QC came to the following conclusion:

“The Inspector made no error of law in concluding that, whether the Property fell within Use Class C3 or C4 at the time of construction of the extension, the HMO enjoyed permitted development rights as a “dwellinghouse” under the GPDO.”

Applying the reasoning in Brent it is clear that, so long as the Gravesham test is met, an HMO, whether falling in Class C4 or not, is a dwellinghouse. That is not a surprising conclusion given that the use described in Class C4 is “Use of a dwellinghouse by not more than six residents as a ‘house in multiple occupation’ ”.

The issue of the meaning and effect of the word ‘single’ as it appears in section 171B(2) TCPA 1990 is at the heart of the dispute between the parties.

In interpreting legislation it is important to identify its purpose (PACCAR at paragraph 41).

The broad policy which underlies the four year rule was identified in Van Dyck as being based upon Parliament’s desire to protect long established residential occupation. Similarly in Arun it was said that the rationale for the imposition of the four year rule was that a longer period would cause serious loss and/or hardship including the loss of homes by homeowners (paragraph 5).

Mr Streeten argues that the purpose of protecting long established residential occupation applies to those living in HMOs. I agree that a policy of protecting residential occupation can apply to different forms of residential occupation and would include HMOs. However section 171B(2) does not refer to changes of use to dwellinghouses or residential occupation in general, but to change of use of any building “to use as a single dwellinghouse”. It is therefore necessary to construe that term in the context of Part VII of the TCPA 1990 and the statute as a whole.

The only other relevant reference in the TCPA 1990 to a single dwellinghouse is to be found in section 55(3)(a). Section 55 defines ‘development’. Section 55(3)(a) makes express provision (for the avoidance of doubt) that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use. That provision appears to be aimed at what Simon Brown LJ (at page 63 in Van Dyck) described as subdivision. In section 55(3)(a) the words ‘used as a single dwellinghouse’ are used in contrast to ‘use as two or more separate dwellinghouses’. In section 55(3)(a) the word ‘single’ qualifies the number of dwellinghouses not the number of occupants or the type of occupancy. The words used in section 171B(2) are different, namely ‘to use as a single dwellinghouse’. The use of the words ‘single dwellinghouse’ in section 55(3) is used in contrast to the uses as two or more separate dwellinghouses, whereas in section 171B(2) ‘use as a single dwellinghouse’ is descriptive of the nature of the use.

At page 72 in Van Dyck Simon Brown LJ recorded the argument advanced by the appellants:

“The appellants, however, contend that the self-same considerations underlying the undisputed application of the four year rule to the creation of a single dwelling-house-namely Parliament's desire to protect long established residential occupation-apply equally to the creation of more than one new residential unit. There is, they submit, neither sense nor logic in making a distinction between these categories; the rule should apply to the creation of all new separate dwellings-although not, of course, to conversions giving rise to multiple occupation with shared facilities, a different class of case altogether.”

At page 73 in Van Dyck Simon Brown LJ said that he had come to accept the appellants’ central argument, and as a consequence held that four year rule applied to all new separate residences. It should be noted, that in accepting the appellants’ central argument Simon Brown LJ did not comment on the fact that the appellants, in their argument, excluded conversions giving rise to multiple occupation with shared facilities.

The conclusion reached in Van Dyck was that each unit created following sub-division constituted a single dwellinghouse, and that therefore all new separate residences benefited from the four year rule. A number of flats are each single dwellinghouses. In referring to separate residences Simon Brown LJ did not restrict the residences which benefited from the four year rule to those in a particular form of occupation. Simon Brown LJ’s reasoning was not directed to (and did not address) conversions to multi-occupation.

In Brent (at paragraph 70) the judge held that the requirement (found in Class C3 of Schedule 1 to the UCO) that use be by people who are to be regarded as forming a single household, or who are living together as such, cannot be imported into the definition of dwellinghouse itself. If section 171B(2) had referred to use of a building as a dwellinghouse there would be no doubt that an HMO (being a dwellinghouse) would fall within its ambit. However Parliament included the word ‘single’ in the phrase ‘use as a single dwellinghouse’. The meaning of those words has to be considered in relation to each dwellinghouse that is created following a change of use of any building.

The wording of section 171B(2) does not follow the approach taken in the description of the use set out in Class C3 of Schedule 1 to the UCO, in that it does not refer to use by a single household.

It is necessary to consider the purpose of including the words ‘use as a single’ before the word ‘dwellinghouse’. It is clear from Van Dyck that those words do not restrict the number of dwellings which can benefit from the four year rule following subdivision. The provision is to be applied so as to benefit all new separate residences after four years.

At paragraph 39 in Arun Carnwath LJ said: “ It is interesting to note that, from the parliamentary debates at the time (referred to in Van Dyck v Secretary of State for the Environment [1993] JPL 565, 575), it appears that the reference to “a single dwellinghouse” was deliberately restrictive. …”. Carnwath LJ went on to say that notwithstanding those references, in Van Dyck the Court of Appeal held that the words were apt to cover a change of use from a single house to two or more separate dwellings.

Given that the statement made by the Minister in the debate in Parliament on 22^nd May 1968 addressed the purpose which lay behind the introduction of what became section 15(3) of the Town and Country Planning Act 1968 (and is now section 171B(2) TCPA 1990) and explained that the reference to “use as a single dwellinghouse” was intended to exclude premises in multi-occupation, I am of the view that the statement can be taken into account when seeking to ascertain the purpose of the legislation.

In his submissions Mr Fullbrook drew a distinction between ‘being a dwellinghouse’ and being ‘used as a single dwellinghouse’, and he submits that use as an HMO does not equate to ‘use as a single dwellinghouse’.

I note that Parliament did not say “one dwellinghouse” or “a dwellinghouse” it said “use as a single dwellinghouse”.

As was made plain in Van Dyck the words ‘use as a single’ in this context do not refer to the number of dwellinghouses. The word ‘single’ in this context does not qualify the noun ‘dwellinghouse’ in the numerical sense (as it does in section 55(3) TCPA 1990); it qualifies the use of the dwellinghouse. As Carnwath LJ said in Arun it appears that the reference to “a single dwellinghouse” was deliberately restrictive (although the immediately following reference to Van Dyck indicates that there are limitations on the restrictions). It is necessary to consider the nature and extent of that restriction. The word ‘single’ qualifies the use of the dwellinghouse. When considering use, the word “single” can be contrasted with the word “multiple”. As the word ‘single’ qualifies use, it excludes uses other than “use as a single dwellinghouse” such as use as a dwellinghouse in multiple occupation.

That construction is consistent with the purpose of the legislation which can be ascertained from the Ministerial Statement at column 665 of the Hansard Report namely to limit the ambit of the four year rule by excluding multi-occupation.

My interpretation is also consistent with the guidance given in paragraph 2.81 of Annex 2 of (no longer extant) Circular 10/97 that the criteria for determining use as a single dwellinghouse includes the manner of the use, and that uses such as bed-sitting room accommodation where the occupants share some communal facilities are excluded from use as a single dwellinghouse.

For those reasons the words “use as a single dwellinghouse” as they appear in section 171B(2) TCPA 1990 do not include an HMO, and therefore the Inspector did not err by referring to the “… 10-year period required to achieve immunity …”.

I have decided that the Appellant should not be permitted to pursue the new point that the four year rule applied when considering the breach of planning control alleged in the 2023 EN. On that basis, I dismiss the appeal.

As the points relating to statutory construction were argued, I have considered them. If I am wrong, and the argument that the four year rule applied was either not a new point, or was a new point which the Appellant should have been permitted to take, I would also dismiss the appeal for the reasons I have given.

On the basis of my conclusions the disputed issues relating to relief do not arise.