Lawfulness of use: establishing: continuity: lack of tenant due to renovations

London Borough of Islington v Secretary of State for Housing, Communities and Local Government and Maxwell Estates [2019] EWCH 2691 –

    1. The Inspector accepted Maxwell Estates’ submission that the unauthorised residential use continued from October 2013 to May 2014, despite the break in occupation. He said, at [DL 15]:
11.At the Inquiry, in examination in chief, Mr Abbasi accepted that there was an intention to improve the quality of the flat to enable the rent to be increased and that that justified the subsequent tenant, Miss Migliore being charged more rent. It seems to me that, despite the break in occupation, this amounts to clear evidence of a continuation of the residential use and intention to permit occupation of the unit again, upon completion of the improvement works and thus to further the breach. This was therefore a period during which the unauthorised use continued.”

23.The Council submitted that the Inspector erred in failing to apply the approach to section 171B(2) TCPA 1990 set out by the Court of Appeal in Thurrock Borough Council v Secretary of State for the Environment [2002] EWCA Civ 226[2002] JPL 1278 (upholding the judgment of the High Court, reported at [2001] JPL 1388) and Swale v Borough Council v Secretary of State for the Environment [2005] EWCA Civ 1568[2006] JPL 886. In deciding whether or not there had been continuous use, the Inspector wrongly applied a presumption of continuance, and took into account impermissible factors such as Maxwell Estate’s intentions and whether the basement was habitable.

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