Titchfield Festival Theatre Ltd v Secretary of State - Planning Enforcement

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  Titchfield Festival Theatre Ltd v Secretary of State for Housing, Communities and Local Government & Anor (Rev1) [2026] EWCA Civ 368 (26 March 2026)

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[2026] EWCA Civ 368 | | |
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| | | Neutral Citation Number: [2026] EWCA Civ 368 |
| | | Case No: CA-2025-001113 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Neil Cameron KC (sitting as a Deputy High Court Judge)
[2025] EWHC 883 (Admin)

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 26/03/2026 |
B e f o r e :

LORD JUSTICE LEWISON
LORD JUSTICE HOLGATE
and
LORD JUSTICE DOVE

Between:
| | Titchfield Festival Theatre Limited | Appellant |
| | - and - | |
| | (1) Secretary of State for Housing, Communities and Local Government
(2) Fareham Borough Council | Respondents |

**Megan Thomas KC (instructed by Thrings LLP) for the Appellant
Dr Ashley Bowes and Jack Barber (instructed by Government Legal Department) for the First Respondent
The Second Respondent did not appear and was not represented

Hearing date : 17 February 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 12:30 noon by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
7. Lord Justice Holgate:
8. Introduction
10. Section 57(1) of the Town and Country Planning Act 1990 ("the TCPA 1990") lays down the general principle that planning permission is required for the carrying out of development of land, subject to a number of express exceptions. One such exception is s.57(4), which provides that where an enforcement notice is issued in respect of a breach of planning control through the development of land, planning permission is not required for that land to be used for its use immediately before that breach, provided that that use was lawful.
12. The first main issue raised before us is whether s.57(4) only applies where the pre-existing lawful use relates to the same area of land as the land the subject of the enforcement notice and not simply part thereof (referred to by counsel as "spatial unity" or a single "spatial unit").
14. The second main issue is whether a pre-existing use right is lost when the planning unit to which it relates is replaced by a new planning unit, with the result that the landowner may not rely upon s.57(4) of the TCPA 1990.
16. The appellant, Titchfield Festival Theatre Limited is the owner and operator of the theatre of that name located on the outskirts of the village of Titchfield, which lies to the West of Fareham. It employs about 15 members of staff and is used by community groups.
18. The theatre is located in converted light industrial and warehousing sheds on a site lying to the north east of St. Margarets Lane. There are three interconnecting units A, B and C which run in a northeasterly direction. In 2010 the appellant bought 73 St Margarets Lane, which comprised units A and B. In 2021, the appellant bought 71, St Margarets Lane, comprising unit C which lies immediately to the north east of units A and B.
20. Area A contains two theatres, the Oak with 188 seats and the Acorn with 96 seats. Area C contains the Arden Theatre with 463 seats.
22. The second respondent, Fareham Borough Council ("FBC") is the local planning authority ("LPA") for its area.
24. On 2 November 2023 FBC issued an enforcement notice which alleged that a breach of planning control had taken place in units B and C, namely without planning permission (a) a material change in the use of that land to theatre use and (b) an engineering operation to excavate and create an underground area beneath the land. The notice required the theatre use to cease, the excavated area to be restored to ground level, various items dismantled and all such materials removed from the site.
26. The appellant appealed against the notice to the first respondent, the Secretary of State for Housing, Communities and Local Government ("SSHCLG"). The grounds of appeal were somewhat confused, but ultimately the appellant relied on ground (a) (planning permission should be granted for the development enforced against), ground (f) (the steps required by the notice exceeded what was necessary to remedy the breach of planning control) and ground (g) (the time for compliance was unreasonably short). The appellant did not rely on ground (c) (that no breach of planning control had occurred). Although at one stage the appellant also relied upon ground (d) (the time limits for taking enforcement action had been exceeded), it withdrew that ground during the inquiry.
28. The appeal was heard at a public inquiry in May 2024. The inspector issued her decision letter on 12 August 2024. She dismissed the ground (a) appeal and refused to grant planning permission for the development enforced against. She dismissed the ground (f) appeal. Under ground (g) she extended the main time limit for compliance to 7 months. Subject to that variation, she upheld the enforcement notice.
30. At the inquiry the appellant relied upon s.57(4) of the TCPA 1990 as a fallback argument. The appellant said that it was entitled to revert to a theatre use on Areas A and B and a storage use on Area C. It appears that it was agreed at the public inquiry that those were the lawful uses of those three areas before the appellant bought Area C and occupied it together with Areas A and B. The appellant argued that that fallback should be taken into account firstly, when assessing the planning merits of the ground (a) appeal and secondly, and in any event, the remedial action required by the notice should not interfere with those use rights (under the ground (f) appeal). The inspector rejected the fallback position based on s.57(4).
32. The appellant appealed against the inspector's decision to the High Court under s.289 of the TCPA 1990. On 28 March 2025 Mr Neil Cameron KC, sitting as a Deputy High Court Judge, dismissed that appeal.
34. The appellant applied for permission to appeal to the Court of Appeal. Stuart-Smith LJ adjourned that application to a rolled-up hearing which came before us.
36. Statutory framework
37. In general, planning permission is required for the carrying out of development (s.57(1) of the TCPA 1990). "Development" generally refers to either the carrying out of building, engineering, mining or other operations in, over or under land ("operational development") or the making of a material change in the use of any buildings or land (s.55(1)).
39. The planning unit is a long-established judicial tool for defining an area of land (or building) in order to determine the use to which that area is put and whether a material change of use has occurred.
41. In Burdle v Secretary of State for Environment [1972] 1 WLR 1207 Bridge J (as he then was) set out some criteria for identifying a planning unit and its use(s), without purporting to propound exhaustive tests covering every situation (pp 1212D-1213A). These may be summarised as follows:
43. (1) A useful working rule is to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be identified;
44. (2) Where the whole unit of occupation is used by the occupier for a single main purpose to which secondary activities are incidental or ancillary, that should be treated as the planning unit;
45. (3) When a single unit of occupation is used for a mixture of activities and it is not possible to say that one is incidental or ancillary to another (a mixed or composite use), that whole area is a single planning unit. In such a case the component activities may fluctuate in their intensity from time to time, but the different activities are not confined to separate and physically distinct areas of land;
46. (4) Where within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes, each area used for a different main purpose (together with its incidental and ancillary activities) is a separate planning unit;
47. (5) The application of these criteria, like the issue of whether a material change of use has occurred, is a matter of fact and degree;
48. (6) Activities which were once incidental to another use or formed part of a composite use, may become so intensified in scale and physically concentrated in a recognisably separate area that they produce a new planning unit, the use of which is materially changed.
49. In Johnston v Secretary of State for the Environment (1974) 28 P & CR 424 the Divisional Court reiterated that the identification of a planning unit is a question of fact and degree which may only be challenged on Wednesbury principles. Prima facie the planning unit is the area occupied as a single holding by a single occupier (p 427). Occupation is significant because it indicates the occupier's control of an area of land (p 428). In that case three lock-up garages capable of separate occupation were in single occupation. The inspector had not erred in law by treating those garages as a single planning unit to determine whether a material change of use had taken place (p 428).
51. In deciding whether a change of use is "material", the general focus is on "the character of the use of the land, not the particular purpose of a particular occupier" (East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484, 491-2). The principle governing the materiality of a change of use, or of considerations in planning control, is whether a factor is relevant to a planning purpose, or the character of the use of land (Westminster City Council v Great Portland Estates plc [1985] AC 661 at 669F-670E; Barton Park Estates Limited v Secretary of State for Housing, Communities and Local Government [2022] EWCA Civ 833; [2022] PTSR 1699 at [45]).
53. Planning permission may be granted in a number of ways, including an express grant of planning permission by a LPA in the determination of an application to that authority, or permitted development rights granted by a development order made by statutory instrument (ss.58 to 61). The relevant order is The Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015 No. 596).
55. Part VII of the TCPA 1990 deals with enforcement. Section 171A defines a breach of planning control:
57. "(1) For the purposes of this Act ?
58. > (a) carrying out development without the required planning permission; or
59. > (b) failing to comply with any condition or limitation subject to which planning permission has been granted,
60. constitutes a breach of planning control."
61. By s.172(1) where a local planning authority considers that a breach of planning control has occurred, and that it is expedient to do so, they may issue an enforcement notice. Such a notice must specify the breach of planning control alleged, the paragraph of s.171A(1) into which the breach falls (s.173(1)) and inter alia the steps required to be taken to remedy the breach by restoring the land to its condition before the breach took place, or to remedy any injury to amenity caused by that breach (s.173(3) and (4)). An enforcement notice may, for example, require the removal of works or the carrying out of building or other operations (s.173(5)). The notice must specify the date on which it is to take effect and the period for compliance with the notice (s.173(8) and (9)).
63. Section 171B sets time limits for the taking of enforcement action, including the issuing of an enforcement notice (see s.171A(2)). Section 171B provided at the material time as follows:
65. " 171B. ? Time limits.
66. (1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
67. (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.
68. (2A) ? ;
69. (3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.
70. (4) ?"
71. By s. 191(2), once a breach of planning control (for example, a material change of use or operational development) becomes immune from enforcement action upon the expiration of a relevant time limit in s.171B, it is treated as lawful (unless it conflicts with an extant enforcement notice):
73. "(2) For the purposes of this Act uses and operations are lawful at any time if ?
74. > (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
75. > (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."
76. Where such development becomes lawful under s.191(2), a certificate to that effect may be obtained under s.191.
77. Section 174 provides for an appeal to be made against an enforcement notice to the SSHCLG. The grounds of appeal in s.174(2) include under ground (a) that planning permission should be granted for the matters alleged to constitute development without permission. Ground (a) is linked to the provisions in s.177 for the determination of a deemed application for such a planning permission. Where the matters stated in the enforcement notice have occurred, an appellant may contend under ground (c) that those matters do not constitute a breach of planning control. An appellant may rely upon ground (d) if at the date when the notice was issued, no enforcement action could be taken in respect of any alleged breach of planning control, a reference to the time limits in s.171B. Under ground (f), an appellant may contend that the steps required by the notice exceed what is necessary to remedy any breach of planning control and under ground (g) that the time for compliance specified in the notice is too short.
79. Section 285(1) provides that the validity of an enforcement notice shall not, except by an appeal under Part VII of the TCPA 1990, be questioned in any proceedings on any of the grounds on which such an appeal may be brought (i.e. the grounds in s.174(2)). Under s.289(1) an appeal on a point of law may be made to the High Court against the determination of an appeal against an enforcement notice under Part VII, but only with the leave of that court (s.289(6)).
81. Section 57 provides so far as is material:
83. " 57.? Planning permission required for development.
84. (1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.
85. (1A) ?;
86. (2) Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted.
87. (3) Where by a development order, a local development order, a Mayoral development order or a neighbourhood development order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which (apart from its use in accordance with that permission) is its normal use.
88. (4) Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out."
89. Planning history
90. The relevant planning history begins in 1964 [1] with the grant of planning permission for the erection of a building on Area C to provide workshops and storage accommodation. It is common ground that this development was carried out.
92. On 2 May 2012 FBC granted a retrospective planning permission for the use of Area A for D2 use [2] and theatre use (sui generis) and Area B for storage use. Condition 1 required those uses to cease by 2 May 2013, to enable the activity generated by the site to be monitored and the grant of any further permission reviewed. Condition 7 limited the number of public performances in Area A to 140 a year.
94. The appellant appealed against that decision to challenge the imposition of condition 1. In a decision letter dated 20 February 2013 the inspector allowed the appeal by deleting condition 1 from the 2021 planning permission. Consequently, the 2012 permission became a permanent consent.
96. The 2013 decision letter records that the theatre use of Area A began in about February 2011 (DL4). The decision letter dated 12 August 2024 records the agreement of the appellant and FBC that both Areas A and B had been used for theatre purposes for at least 10 years before the breach of planning control alleged in the enforcement notice dated 22 November 2023. The inspector said that she did not disagree (DL13).
98. On 17 March 2022 FBC granted detailed planning permission for extensions to the warehouse building on Area C and the raising of its roof. One object was to extend the building on Area C into the gap between that building and the building on Area B so as to connect the buildings. It appears that the work began in August 2022.
100. The Inspector's decision letter
101. The inspector dealt with the planning merits of the development enforced against and the ground (a) appeal at DL15 to DL103. She identified the main issues at DL15, including whether the site was a suitable location for a theatre and impact on residential amenity.
103. The site lies in the countryside for the purposes of the development plan. St Margarets Lane has a semi-rural character with farmland in the surrounding area (DL16). The inspector found that most trips to the theatre would be made by car and that the site was not a suitable location for the use in terms of accessibility by sustainable modes of transport (DL21 to DL28). She concluded that the development conflicted with policies for the siting of town centre types of use and would harm the vitality and viability of the Borough's centres (DL33 to DL52). The inspector decided that the development was harmful to highway safety because there was insufficient car parking available (DL53 to DL72). On the other hand, the inspector rejected objections based on noise and harm to residential amenity (DL73 to DL77).
105. The inspector then turned to other considerations, one of which was the appellant's fallback argument. She addressed this at DL78 to DL84:
107. "78. The appellant argued that a fallback position exists which is a material consideration. The basis for this is the accrued lawful use of Areas A and B for theatre use. Therefore, it is argued, if I uphold the notice and the requirements are complied with, the use of Areas A and B as a theatre could continue, and Area C would revert to a storage use, through section 57(4). As a result, the Arden Theatre could be reduced in size to be wholly contained in Area B. The appellant estimates that a reduced Arden Theatre would have 341 seats, and that this could run alongside the Oak and Acorn theatres.
108. 79. The parties agree that the use of Areas A and B accrued a lawful use for theatre purposes prior to the incorporation of Area C. However, it needs to be established whether the reversion to the accrued use would be lawful under section 57(4).
109. 80. It has been established through case law that a lawful use can be lost in specific circumstances. One of those circumstances is where there has been the formation of a new planning unit. Whether a new planning unit has been created is a matter of fact and degree for the decision maker to determine.
110. 81. The parties agree that prior to the current breach of planning control, there were two planning units - the planning unit previously consisted of Areas A and B and that Area C previously formed a separate planning unit. They also agree that the unit of occupation is now all three areas. While there are three separate theatres and a number of ancillary activities taking place, they are not in physically separate and distinct areas that are occupied for substantially different and unrelated purposes. The Arden Theatre straddles Areas B and C, which are no longer physically subdivided. Amongst other things, Area C provides backstage space as well as dressing rooms, part of the stage and orchestra pit of the theatre. I am therefore satisfied that a new planning unit was formed when Area C was incorporated into the theatre use with the construction of the Arden Theatre.
111. 82. I have had regard to the case of Stone and the other authorities discussed in the legal submissions on this question in coming to this conclusion. In Stone an existing lawful use was found to be capable of being extinguished by the creation of a new planning unit in respect of the land in question. In this case, the amalgamation of two planning units into one has resulted in a change in character of the use. It has changed from a small theatre and ancillary uses in Areas A and B, to a much larger theatre use over the three areas (A, B and C) and the formation of a new planning unit. The new planning unit contains a large theatre which has given rise to additional traffic movements, noise generation and parking requirements. These indicate that the character of the use has changed and that this has planning consequences, such that the change has been material. As the expansion of the planning unit has been onto land that was previously in a separate and unrelated use as storage, it is not the case that the theatre has simply been extended.
112. 83. The implication of Stone is that careful consideration needs to be given to the wording of section 57(4). The 'land' which is the subject of the enforcement notice is Areas B and C. The lawful use which has been established through the passage of time, relates to Areas A and B, which formed one, self-contained unit. The 'land' does not therefore have a lawful use, as the lawful use does not include Area C. The land with a lawful use as a theatre (Areas A and B) no longer exists as a planning unit. I therefore conclude that section 57(4) does not permit a reversion to a lawful theatre use in Area B as suggested by the appellant, because that planning unit no longer exists.
113. 84. In terms of the alleged fallback position therefore, the lawful theatre use is restricted to Area A by dint of the 2013 permission. Area B has a lawful use for storage through the 2012 permission and Area C, as a separate planning unit, has a lawful use through its 1963 permission. There is therefore no possibility, even merely theoretical, of installing a theatre in Area B without planning permission. The fallback position relied upon by the appellant does not therefore exist. I note that the 2013 permission was subject to a condition restricting the use of Area B to B1 and B8 uses. It is not the case therefore that Area B could be used for the range of uses falling within Class E. It has not been put to me that there is any other fallback position in this regard."
114. The inspector decided in part that:
116. (1) The development the subject of the enforcement notice involved the creation of a single new planning unit covering Areas A, B and C which replaced the two former planning units, one of which comprised Areas A and B and the other comprised Area C (DL82);
117. (2) The new planning unit contained a large theatre which had generated additional traffic, noise and parking requirements, amounting to a material change of use (DL82);
118. (3) The lawful use as a theatre related to Areas A and B. That planning unit had not included Area C and it no longer existed. The enforcement notice land (Areas B and C) therefore did not have a lawful use, as Area C had not formed part of the area with a lawful use for theatre purposes. Applying the decision in Stone (see below), s.57(4) of the TCPA 1990 could not be relied upon to revert to theatre use on Area B (DL83).
119. The inspector then addressed the benefits of the development at DL85 to DL89. She struck the overall planning balance at DL98 to DL103 and found that the benefits did not outweigh the harm identified, including conflict with the development plan.
121. The inspector rejected the appellant's ground (f) appeal at DL104 to DL111. At DL106 she recorded the appellant's contention that in order to preserve the existing use rights for Area B as a theatre, the requirement in the notice to cease that use should be restricted to Area C. But the inspector said that because she had found that "the accrued lawful use of Area B as part of the theatre in Area A has not survived the breach of planning control " (see DL83 to DL84) this aspect of the ground (f) appeal had fallen away (DL106).
123. The inspector went on to allow the appeal under ground (g) by increasing the time allowed for compliance with the requirements of the notice to dismantle and remove items used for the theatre and to restore the site.
125. The appeal to the High Court
126. The appellant advanced two grounds of appeal. Ground 1 was subdivided into four limbs, two of which came perilously close to rearguing the merits. For present purposes these were the two main limbs:
128. (1) The inspector failed to give a lawful or rational reason for concluding that the theatre use rights which had accrued in Area B prior to the incorporation of Area C were lost as the result of that incorporation so as to create a larger planning unit. It had been insufficient for the inspector to say that a material change of use had occurred. She ought to have assessed whether a change had taken place of such a character as to be sufficient to open a new chapter in the planning history of the site;
129. (2) In relation to the ground (f) appeal, the inspector wrongly refused to restrict the requirements of the enforcement notice to Area C on the flawed basis that Area B had ceased to have lawful theatre use rights (DL106).
130. Ground 2 was as follows:
132. (1) The inspector erred in law in holding that s.57(4) of the TCPA 1990 did not allow reverter of Area B to its previous lawful use, namely for theatre purposes, because the enforcement notice had related to Areas B and C together. Section 57(4) was not restricted to cases where there was spatial unity between the land the subject of the enforcement notice and the land which had benefited from lawful use rights immediately preceding the breach of planning control.
133. (2) The inspector failed to take into account the principle in Mansi v Elstree Rural District Council (1965) 16 P & CR 153 when construing s.57(4).
134. In the High Court the skeleton arguments of both parties concentrated on the case law concerned with whether accrued use rights are lost by the creation of a new planning unit or a new chapter in the planning history of the site. On the other hand, relatively little was said about the proper interpretation of s.57(4). Both sides focused on the decision of Wyn Williams J in Stone v Secretary of State for Communities and Local Government [2014] EWHC 1456. This was a case on which FBC had relied at the public inquiry and on which the inspector relied in her decision letter. Neither party appears to have referred the judge to the decision of the House of Lords in Young v Secretary of State for the Environment [1983] 2 AC 662.
136. The parties' approach was reflected in the judge's judgment. He analysed case law on loss of accrued use rights at [25] to [34] and dealt with s.57(4) at [35] to [40] referring only to Stone. He referred at [37] to one passage in Stone at [49], where Wyn Williams J had read s.57(4) as authorising solely the land the subject of the enforcement notice to be used for the purpose for which that same land was used immediately before the development enforced against, provided that that previous use was lawful. The judge adopted that interpretation.
138. In relation to ground 1 the judge summarised the submissions by Ms Megan Thomas KC who appeared on behalf of the appellant. She said that it had been insufficient for the inspector to say that pre-existing use rights were lost because a new planning unit had been formed and there had been a material change of use. She ought to have considered in addition whether, as a matter of fact and degree, that alteration had been of such a "character" that a new chapter in the planning history had begun, making a radical change in the planning history of the site, such that lawful use rights in Area B had been extinguished [44].
140. Dr Ashley Bowes, who appeared on behalf of the SSHCLG, said that the inspector's reasons as to why the pre-existing use rights on Area B had been lost were twofold: (1) Area B was incorporated into a new planning unit (2) in circumstances where that gave rise to a change in the "character" of the site. In reality, the first limb of ground 1 was simply an attack on the evaluative judgment of the inspector ([45]-[46]).
142. The judge agreed with the SSHCLG's submissions. At [47]-[50] he said:
144. "47. At DL80 the inspector identified the correct question, stating that one of the circumstances in which a lawful use right can be lost is through the formation of a new planning unit. The inspector then states: "Whether a new planning unit has been created is a matter of fact and degree for the decision maker to determine." Ms Thomas accepts that there is no legal error in DL80.
145. 48. At DL81 the inspector considers the facts and states that she is satisfied that a new planning unit was formed when Area C was incorporated into the theatre use with the construction of the Arden Theatre. Ms Thomas accepts that there is no legal error in DL81.
146. 49. At DL 82 the inspector said she had regard to Stone and the other legal authorities discussed in the legal submissions made to her. In the second sentence of DL82 the inspector said that in Stone an existing lawful use was found to be capable of being extinguished by the creation of a new planning unit in respect of the land in question. That principle, as identified in Stone, is not dependent upon the particular facts of that case. An existing lawful use is capable of being extinguished by the creation of a new planning unit; both parties represented in this case accept that proposition. The statement made by the inspector in the second sentence of DL82 is correct and reveals no defect in reasoning."
147. "50. In the third sentence of DL82 the inspector found that the amalgamation of the two planning units into one has resulted in a change in the character of the use. The inspector then states that the new planning unit contains a large theatre which has given rise to additional traffic movements, noise generation and parking requirements. It was on the basis of those facts that the inspector found that the character of the use had changed, and that this had planning consequences such that the change has been material. The inspector further stated that it was not the case that the theatre had simply been extended, the expansion of the planning unit had been onto land which was previously in a separate and unrelated use as storage". (emphasis added)
148. Thus, the judge endorsed the reasoning of the inspector.
149. The judge went on to reject the appellant's submissions that the inspector had erred by failing to decide whether a new chapter in the planning history had begun or whether there had been a radical change in the planning history of the site. He also relied upon a statement by Oliver LJ (as he then was) in Jennings Motors Limited v Secretary of State for the Environment [1982] QB 541 at 554D-E that, even where there is no change or a less radical change in the physical nature of a site, a new chapter in the planning history of a site may nevertheless begin where there is a change in the planning status of a site inconsistent with the preservation of prior existing use rights. He then gave two examples: the subdivision of a site into smaller units of occupation or its incorporation into a larger single unit (see the judgment at [51]-[54]).
151. Understandably, because the judge decided that that main limb of ground 1 failed, it followed that the second limb relating to the inspector's determination of the appellant's ground (f) appeal also failed.
153. On ground 2 Ms Thomas submitted that s.57(4) does not require that the land the subject of an enforcement notice be the same as the land on which there were pre-existing lawful use rights. Stone did not require there to be spatial unity between the enforcement notice land and the land which has such use rights. Secondly, the inspector failed to apply the Mansi principle.
155. Dr. Bowes submitted that Stone did decide that there has to be such spatial unity and was correct to have done so. He added that Mansi does not affect the analysis in Stone. Mansi simply decides that an enforcement notice must not prohibit uses or rights which are not enforced against.
157. The judge said he read Stone as deciding that "land" in s.57(4), and thus that exception from the requirement to obtain planning permission, referred to the land the subject of the enforcement notice, and only that land. He added that the absence of the definite article, "the", before "land" did not indicate that the term "land" when used in s.57(4) includes any part of that land ([73]-[77]).
159. The judge then rejected the appellant's reliance upon Mansi at [78]-[79]. Although that principle does prohibit the use of an enforcement notice to restrict or remove lawful rights, it does not apply where pre-existing use rights have been lost by the creation of a new planning unit or the opening of a new chapter in the planning history of the land. The inspector had been correct to say in DL83 that the land the subject of the enforcement notice did not have a lawful use, because the lawful use rights for theatre purposes had been on Areas A and B, not Area C, and Areas A and B, which had had a lawful use for theatre purposes, no longer existed as a planning unit.
161. Grounds of appeal in the Court of Appeal
162. The appellant seeks permission to advance the following grounds of appeal:
164. Ground 1
165. The judge failed to construe s.57(4) correctly. His interpretation is contrary to the ordinary meaning of that provision and is too narrow. He failed to interpret s.57(4) in accordance with the Mansi principle which protects any existing use rights, whether or not they cover the whole of the land enforced against. The judge failed to distinguish Stone on its particular facts and wrongly held that it supports the narrow interpretation of the statutory provision.
166. Ground 2
167. (1) The judge was wrong to decide that the inspector did not err in law in concluding that the existing use rights for Area B had been extinguished by the use of Area C for theatre purposes and its incorporation with Areas A and B to form a larger planning unit. The judge was also wrong to find that the reasons given by the inspector for the extinguishment of existing use rights on Area B were adequate and intelligible. Both the inspector and the judge failed to understand that "new planning unit" is shorthand for a radical change in the planning history of the land incompatible with the continuation of existing use rights, as opposed to a "planning unit" as a tool for identifying an area of land within which to assess whether a material change of use has taken place.
168. (2) If the inspector was entitled to find that the character of the use had changed from a small theatre to a larger theatre, when she considered any changes in impact she failed to take into account obvious material planning considerations, namely impacts from parking, traffic and noise relating to pre-existing use rights, namely the theatre use of Area B and the workshop/storage use of Area C.
169. (3) If the judge erred under ground 1 then it follows that he erred in his judgment at [65] in rejecting the challenge to DL106 in relation to the ground (f) appeal. Consideration should have been given to varying the enforcement notice so as not to interfere with lawful use rights on Area B for theatre purposes and Area C for storage/workshop purposes.
170. I note that the sequence of grounds 1 and 2 in the High Court has been reversed in this Court. For reasons which will become apparent, that revised sequence is preferable.
172. Ground 1
173. Section 57(4) of the TCPA 1990 goes back to the inception of the system of planning control introduced by the Town and Country Planning Act 1947 (s.24(4)). The same provision was carried through subsequent consolidations (s.13(9) of the Town and Country Planning Act 1962 and s.23(9) of the Town and Country Planning Act 1971 ("TCPA 1971")). For convenience I refer to s.57(4) throughout the discussion of the case law.
175. It has been said many times, but it is worth repeating, that Parliament has enacted a comprehensive code for planning control, the effect of which is to be ascertained according to the intention of Parliament expressed through the language and purposes of the legislation, considered as a whole. If the statute covers a situation, it is generally an impermissible exercise of the judicial function to go beyond that provision by introducing principles which are not found in the legislation (Pioneer Aggregates (UK) Limited v Secretary of State for the Environment [1985] AC 132, 140H-141C).
177. It is important to note the specific limitations which Parliament has chosen to impose on the ambit of s.57(4). First, it only creates an exception to the requirement to obtain planning permission for development if an enforcement notice is issued. A local planning authority is entitled to decide not to issue an enforcement notice because it would find reverter to a preceding use under s.57(4) more objectionable than the subsisting breach of planning control. Second, the breach of planning control alleged in the enforcement notice must relate to development, not a breach of condition. Third, the right to revert under s.57(4) is restricted to a use of land and does not include the carrying out of operational development. Fourth, that right to revert is restricted to use rights within the area of land which is the subject of the enforcement notice.
179. For present purposes Young is the main authority on the interpretation of s.57(4). In that case a building had been used between 1912 and 1969 as a laundry which fell within Class IV, the general industrial use class, in the Town and Country Planning (Use Classes) Order 1972 (SI 1972 No. 1385). In 1969 there was a change of use to a light industrial use within Use Class III in the 1972 Order, a change which was permitted by the Town and Country Planning General Development Order 1977 (SI 1977 No. 289). In 1970 there was a change of use back to a laundry use, still a general industrial use, for which planning permission was required but not obtained. Lastly, in 1977 the use of the building was changed back to a light industrial use, which, given that the immediately preceding use was unlawful, required planning permission. No such permission was obtained for that final change, which was the subject of an enforcement notice.
181. The issue was whether s.57(4) "enables a person, upon whom an enforcement notice is served alleging a breach of planning control by making a material change in the use of land, to revert to the use to which the land was last lawfully put, or only to revert to the use immediately preceding the development enforced against, provided that such use was itself lawful" (p.667E). The appellant, Mr Young, argued that the former was correct. He recognised that the use between 1970 and 1977 which immediately preceded the development enforced against was unlawful. But he contended that s.57(4) entitled him to go further back in the planning history to rely upon the last lawful use to have taken place, which was the light industrial use between 1969 and 1970.
183. The House of Lords rejected Mr Young's contention and held that s.57(4) only authorises land to be used for the use immediately preceding the development enforced against, and only if that use was lawful. Giving the leading speech, Lord Fraser said this at 669G-670C:
185. "I reach that opinion upon construction of section 23 (9) itself and especially of the last few words in the sub-section. Where an enforcement notice is issued in respect of any development, what the subsection authorises without planning permission is use for the purpose for which the land could lawfully be used "if that development had not been carried out." Accordingly one has to assume that the development consisting of the change of use in 1977 had not been carried out, and see what would have been the state of affairs on that assumption. Clearly if that development had not been carried out, the land would have continued to be used as a laundry, as it was from 1970 to 1977. But admittedly it was not "lawfully" so used during that period. The appellant claims to be entitled to follow the planning history of the land further back through its earlier uses until he gets back to the last lawful use, which in this case was use as a light industrial building for food processing in 1969 to 1970. But the process of following the history back would in my view not be consistent with the hypothesis of section 23 (9) which is that only the development of 1977 had not been carried out. The appellant's argument would involve reading the sub section as if it referred to the purpose "for which the land could last lawfully have been used before that development had been carried out." Such a reading would materially alter the sense of the subsection and is in my view unwarranted." (emphasis added)
186. In Fowler v Revenue and Customs Commissioners [2020] UKSC 22; [2020] 1 WLR 2227 Lord Briggs JSC listed at [27] some of the principles applicable to statutory assumptions or deeming provisions:
188. > "(1) The extent of the fiction created by a deeming provision is
189. > primarily a matter of construction of the statute in which it appears.
190. > (2) For that purpose the court should ascertain, if it can, the purposes for which and the persons between whom the statutory fiction is to be resorted to, and then apply the deeming provision that far, but not where it would produce effects clearly outside those purposes.
191. > (3) But those purposes may be difficult to ascertain, and Parliament may not find it easy to prescribe with precision the intended limits of the artificial assumption which the deeming provision requires to be made.
192. > (4) A deeming provision should not be applied so far as to produce unjust, absurd or anomalous results, unless the court is compelled to do so by clear language.
193. > (5) But the court should not shrink from applying the fiction created by the deeming provision to the consequences which would inevitably flow from the fiction being real. As Lord Asquith memorably put it in East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109, 133:
194. > > "The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.""
195. Accordingly, in order to apply s.57(4) the decision-maker should go through the following steps:
197. (1) Identify the development which the enforcement notice alleges to have been a breach of planning control on the land to which the notice applies;
198. (2) Identify the use of that land immediately before that breach;
199. (3) Make the assumption that that breach has not taken place;
200. (4) On that assumption consider whether the immediately preceding use of the land was lawful;
201. (5) If the answer under (4) is that it was lawful, planning permission is not required to revert to that use.
202. It follows that in the present case s.57(4) had to be applied on an assumption that the material change of use of Areas B and C to a theatre use, as well as the engineering operations to excavate an underground area, had not been carried out. When determining whether there was a right of reverter under s.57(4) the inspector was required to apply that counter-factual hypothesis.
204. It was common ground before the inspector, and she accepted, that before the breach of planning control took place, Areas A and B had a lawful use for theatre purposes and Area C for storage. But she decided that the appellant could not rely upon s.57(4) to revert to those uses because the development the subject of the enforcement notice involved the creation of a new planning unit covering Areas A, B and C and a material change of use (DL82-DL83). The judge upheld the inspector's conclusion and the basis upon which she arrived at it.
206. In my judgment that reasoning was irrelevant. It involved a failure to apply the hypothesis in s.57(4). The new planning unit and the material change of use only arose because of the very development which was the subject of the enforcement notice. Yet it was that development which s.57(4) required to be disregarded when applying that provision. The question for the inspector was not whether a new planning unit had been created by the carrying out of the development enforced against, but what would have been the position if that development had not been carried out and that new planning unit had not been created. It follows that the inspector was not entitled to rely upon the material change of use in the new planning unit as reasons for concluding that s.57(4) did not apply to the immediately preceding lawful uses, namely theatre purposes in Area B and workshop/storage use in Area C.
208. It also follows that, when applying the assumption required by s.57(4) for the purpose of determining whether there was a right of reverter, it was irrelevant for the inspector to say at DL83 that the planning unit comprising Areas A and B with a lawful use for theatre purposes no longer existed (see DL83). In that context, the development the subject of the enforcement notice and its effect upon the immediately preceding planning status of the land had to be ignored.
210. In Young the Court of Appeal made the point that, in general, existing use rights are lost when a landowner makes a material change of use from use A to use B. This is not because the landowner has abandoned use A. Rather it is because a reverter back from use B to use A is also likely to involve a further material change of use and therefore require planning permission (1983) 81 LGR 389, 397-8). It is for that reason that Parliament enacted s.57(4) so as to create an exception to that requirement
212. I do not accept the appellant's suggestion that s.57(4) is to be interpreted in accordance with the principle in Mansi. That principle is irrelevant to the meaning and scope of that provision. In Mansi land was used as a horticultural nursery and contained a number of glasshouses. For many years part of the land and one of the glasshouses had been used for the ancillary sale of produce. But then the glasshouse started to be used for the non-ancillary purpose of selling imported goods. An enforcement notice was served against a material change of use from a horticultural use to a retail use. The notice required the cessation of that retail use. The notice was upheld by the Minister, but the Divisional Court remitted the decision so that the notice could be amended to allow ancillary retail sales to continue. The enforcement notice ought not to have prohibited that lawful activity. Mansi has also been applied to the protection of a right to revert to a use pursuant to s.57(4) (see Day and Mid-Warwickshire Motors Limited v Secretary of State for the Environment (1979) 78 LGR 27).
214. The Mansi principle is concerned with the drafting of an enforcement notice so as to avoid interference with planning rights which, as a matter of law, remain unaffected by enforcement against the specified breach of planning control. The Mansi principle may deal with the consequences of applying s.57(4) in a particular case, but it is not concerned with the interpretation of s.57(4) or with its application to the facts of any case.
216. I turn to consider the decision in Stone. The facts and issues in the case appear to have been somewhat complicated and the judgment requires careful reading.
218. Much of the reasoning in Stone was taken up with the inspector's treatment of the ground (c) appeal, namely that what had taken place did not constitute a breach of planning control because the appellants were entitled to rely upon a planning permission deemed to have been granted in 2009 (DL30 to DL41 of the inspector's decision letter and [15] to [19] of the judgment of Wyn Williams J). That argument was largely concerned with whether the inspector had erred in concluding that the rights granted by the 2009 permission had been extinguished by the creation of new planning units and a material change of use ([26] to [43]). The judge concluded that the inspector's reasons for rejecting the ground (c) appeal were not open to criticism. That reasoning was not concerned with the interpretation and application of s.57(4).
220. Wyn Williams J addressed s.57(4) at [20] and [44] to [50]. This part of the case dealt with the inspector's handling of the ground (f) appeal where, relying on the Mansi principle, the appellants had contended that the inspector failed to amend the enforcement notice so that it did not remove their lawful use rights under s.57(4) in the event of the notice being upheld. Although the judgment contains some very brief general observations on s.57(4), the decision turned on the application of that provision to the unusual facts of the case (see [48]).
222. The judge's general comments in [47] began by referring back to 34 where he cited a passage from the judgment of Watkins LJ in Young in the Court of Appeal. That mainly dealt with the uncontroversial proposition that lawful use rights are lost when a material change of use takes place. That passage had therefore provided support for the judge's rejection at [43] of the challenge to the inspector's conclusions on the ground (c) appeal.
224. At [47] Wyn Williams J then referred to the possibility that, by virtue of s.57(4), a use of land might "survive" a material change of use. No doubt the judge had in mind the disregard in s.57(4), i.e. the assumption that the development the subject of the enforcement notice had not occurred. He went on to make it plain that he was not going to lay down an exposition of the circumstances in which s.57(4) applies. This was because the analysis by leading counsel for the Secretary of State of the particular facts in Stone demonstrated why s.57(4) could not assist the appellants in that case. That may explain why Stone does not appear to have been cited subsequently in other cases apart from the present one.
226. This analysis was set out at [48]. The appellants' argument depended upon the former lawful use rights created by the 2009 permission. That consent was for a mixed use for residential purposes and the storage of non scrap vehicles across the whole of a planning unit referred to as area D. That unit had comprised a dwelling in a residential curtilage and land used for storage of such vehicles. "Such a mixed use could exist only because there was a residence and residential curtilage forming part of the planning unit." The inspector considered that the use of area D had subsequently changed so that the dwelling and its curtilage formed one planning unit and the storage land was occupied for business purposes with other neighbouring areas (A, B and C) together forming a new planning unit. He varied the enforcement notice so as to exclude the residential area without any complaint from the appellant. But the only preceding lawful use right which the appellants could put forward for the purposes of s.57(4), the 2009 permission, was a mixed use on the whole of area D which included residential purposes. It was not a lawful use purely for the storage of non scrap vehicles (whether on the whole or only part of area D).
228. It is in this context that [49] of the judgment of Wyn Williams J, upon which the inspector, Dr Bowes and the Deputy Judge relied, must be read:
230. "It seems to me, too, that careful consideration should be given to the words of section 57(4) of the 1990 Act. In my judgment the subsection authorises "land" to be used in a manner which was lawful immediately before the development which is the subject of an enforcement notice. The "land" to which the subsection is directed is the land which was the subject of the enforcement notice. In the instant case that includes areas A, B and C as well as part of area D. These areas were not the subject of the planning permission which came into effect in 2009; the area which was the subject of that permission was the whole of area D. In my judgment, the use of area D authorised by the planning permission was not a use referable to the land which is the subject of the 2012 notice."
231. It is plain that the effect of [49] when read together with [48] was that:
233. (1) The area of land the subject of the enforcement notice for the purposes of applying s.57(4) comprised areas A, B, C and the commercial part of D, but excluded the residential area of D (which the inspector removed from the notice);
234. (2) The relevant question was what was the immediately preceding lawful use (if any) of that specific area of land;
235. (3) The 2009 planning permission related to the use of the whole of area D and therefore extended beyond the enforcement notice land. It permitted a mixed use of area D which included a residential use. But the legal right to use area D for those mixed purposes, could not subsist without the dwelling which had been excluded by the variation of the enforcement notice;
236. (4) The appellants had no rights under the 2009 permission to use that part of area D which remained within the enforcement notice for the mixed use (or, indeed, a single use for the storage of non scrap vehicles).
237. In Stone it was because of the very nature of the mixed use authorised by the 2009 permission that that use could not lawfully be carried out on that part of area D which was the subject of the enforcement notice as varied. That variation of the notice formed a critical part of the court's reasoning. Stone is simply an example in practice of the non-controversial point that s.57(4) is to be applied to the land the subject of the enforcement notice. Stone at [49] is not to be treated as laying down any wider principle, As I have said, the judge made this plain at [47].
239. If Wyn Williams J had accepted the proposition now advanced by the Secretary of State in this appeal that s.57(4) cannot apply to anything less than the whole of the land the subject of the enforcement notice, he would have said so explicitly. He did not. Paragraph [48] would have been unnecessary. The judge could simply have said that's.57(4) did not apply to the 2009 permission because that permission only related to area D and not to the whole of the land the subject of the enforcement notice.
241. It also follows from this analysis that (a) neither the judge nor the inspector in Stone made the error of deciding that s.57(4) could not apply to the 2009 permission because the use rights it granted had been lost through the subsequent material change of use and (b) their decision was consistent with the statutory assumption in s.57(4) that the breach of planning control had not taken place.
243. The present case is completely different. The lawful uses identified by the inspector were not mixed uses. She accepted that the lawful use of Area A was for theatre purposes, and likewise Area B, and that Area C had a lawful use for storage. The present case did not involve the impossibility of exercising a lawful mixed use right by the removal of a part of a relevant planning unit which was essential to that use. Nor did this case involve any argument or finding by the inspector that there was any legal or other impediment to the exercise of any of those lawful use rights.
245. Unfortunately in the present case Stone has been cited outside its true context, which depended upon its particular facts. Stone is not authority for the proposition that s.57(4) only applies where there is spatial unity between the land the subject of the enforcement notice and the land upon which lawful use rights would exist assuming that there had been no development constituting a breach of planning control.
247. That leaves the question whether as a matter of principle the proposition is nevertheless sound and should be accepted by this court. Dr Bowes submitted at para.48 of his skeleton argument that s.57(4) is a carefully defined exception to the general requirement that planning permission be obtained for development, where the same spatial unit as the land to which the enforcement notice relates had, immediately prior to the breach of planning control a common lawful use or uses. He submitted that in addition to spatial unity there has to be a unity as to purpose within that area of land.
249. True enough, as Dr Bowes pointed out, s.57(4) excepts from planning control the use of the land for the purpose for which it could lawfully have been used. But in accordance with s.6 of the Interpretation Act 1978, the singular form of "the purpose" in s.57(4) includes the plural "the purposes". The same applies to the word "use". There is nothing in s.57 or the statutory scheme to indicate that in subsection (4) "purpose" or "use" is confined to a single purpose or use. But Dr Bowes seeks to meet this by saying that his concept of unity as to purpose is satisfied where a single spatial unit has either a common use or common uses in the sense of a mixed use. However, he maintains that s.57(4) does not apply where, as in the present case, the area of land the subject of an enforcement notice has previously been used for two (or more) different purposes each in separate units (here theatre use in Area B and storage use in Area C). On his case, multiple purposes could only fall within s.57(4) where the enforcement notice land was previously used for mixed purposes in a single unit.
251. A major difficulty with this subtle line of argument is that Dr Bowes has not been able to identify any language in the TCPA 1990 to support it, whether expressly or by implication.
253. Section 57(4) asks whether the immediately preceding use or uses of the land the subject of the enforcement notice was or were lawful, subject to the parameters or limitations set by Parliament (see [56] above), There is no further parameter or limitation in s.57(4), or in the statutory scheme, which requires that, before the breach of planning control alleged in the notice took place, any lawful use must have related to a single planning unit equating to the notice land. Section 57(4) is not directed at using the planning unit tool to assess whether the alleged breach of planning control has occurred. Indeed, it assumes that that breach has not occurred for the purpose of identifying whether the immediately preceding use of land was lawful. Although it may be necessary in some cases to consider what planning unit or units existed before the breach of planning control to see, for example, whether there was a pre-existing use (or uses) which was lawful under s.191(2) and which should be considered when applying s.57(4), that would be a different matter. The legislation does not require that any such planning unit, or any area the subject of a planning permission, be the same as the planning unit upon which the enforcement notice was based when identifying the material change of use which has subsequently taken place.
255. Section 57(4) provides that planning permission is not required for the use of the land the subject of an enforcement notice for an immediately preceding lawful use. The mechanism used by Parliament to achieve that outcome is a requirement to assume that the development enforced against has not taken place. Section 57(4) simply looks back to what the position was before that breach of planning control. That mechanism carries no implication that the exception only applies where there was a single planning permission or status covering the whole of that area, or a single purpose (or mixed use), or a single unit of occupation. No reason has been advanced as to why Parliament should have intended those additional limitations to apply so that, for example, a landowner would not be able to revert to relying upon a planning permission authorising the use of say 90% of the enforcement notice land. The Secretary of State has not produced a justification for the court to take the step of adding judicial principles requiring spatial and purposive unity to the clear language of s.57(4), contrary to the approach laid down in Pioneer Aggregates (see [55] above).
257. Lastly, Dr Bowes submitted in his skeleton argument that the court should, in the exercise of its discretion, refuse to allow the appeal because in any event the use of Area B would be in breach of one or more conditions of the 2012 planning permission. Dr Bowes withdrew this submission. He was right to do so. It was not raised before the inspector. The issue was not ventilated in the correct forum and therefore did not result in any findings in the decision letter which would have been necessary to found such an argument.
259. There may be cases, of which Stone is an example, where it is impossible for a landowner to exercise pre-existing lawful use rights in accordance with s.54(7). However, consideration of that issue must be left to any case in which that point arises for determination. It does not arise in the present case.
261. Conclusion on ground 1
262. The inspector's decision cannot stand. Unfortunately, when she came to apply s.57(4) she was led into considering matters which were irrelevant to that provision, but which concerned the taking of enforcement action for the breach of planning control, such as the creation of a new planning unit and the extinguishment of pre-existing use rights. She did not apply the statutory disregard as explained by the House of Lords in Young. The inspector was also led into error by the citing of Stone, which was essentially a decision on its facts and provided no assistance on the application of s.57(4) in the present case. These errors of law tainted the inspector's decision on both the ground (a) and ground (f) appeals. The decision cannot be saved by recourse to the spatial unity principle advanced by counsel. The judge in the High Court erred in upholding the inspector's decision.
264. Ground 2
265. It follows that the substance of ground 2(1) falls away. The arguments raised here are directed at issues which go to the breach of planning control and its effect on existing use rights, not the proper application of s.57(4).
267. Ground 2(2) complains that the inspector failed to assess impacts on traffic, parking and noise from the pre-existing lawful uses of Area B for theatre purposes and of Area C for storage. Those matters were not the subject of evidence before the inspector and it is inappropriate for them to be raised now.
269. For the reasons given in summary in [89] above, the appeal on ground 2(3) succeeds.
271. Because of the way in which the case has been argued by the parties before the inspector and subsequently, I think it would be helpful and appropriate to clarify some of the terminology which they have used, such as the phrases "new planning unit" and "new chapter in the planning history" of a site.
273. The mere fact of obtaining a planning permission or permissions on a site does not extinguish existing use rights on that site. Those consents may never be implemented and may lapse. However, the implementation of a permission may result in existing use rights being extinguished.
275. In Prossor v Minister of Housing and Local Government (1968) 67 LGR 109 a planning permission for the rebuilding of a service station was implemented. A condition of the permission prohibited retail sales from the site other than motor accessories. It was held that the appellant was not entitled to rely on previous use rights to sell cars from the site because that was a breach of the condition. The planning history of the site began afresh when the planning permission was implemented, thereby extinguishing pre-existing use rights inconsistent with that condition.
277. In Petticoat Lane Rentals Limited v Secretary of State for the Environment [1971]1 WLR 1112 planning permission was granted for the redevelopment of a cleared site for a building comprising offices, warehousing, a supermarket and car parking and loading area (with the latter being used for market trading on Sundays). The permission was implemented and the building completed. Market trading took place on the ground floor both on Sundays and weekdays. The court held that the erection of a new building over the whole site created a new planning unit with no planning history. That was sufficient to extinguish any pre-existing use rights for market trading, even in the absence of a condition to that effect.
279. In Newbury District Council v Secretary of State for the Environment [1981] AC 578 the House of Lords was concerned with the effect of a planning permission which authorised the use of existing buildings as warehouse for the storage of a particular product, subject to a condition requiring their removal 10 years later. The buildings already had the benefit of permitted development rights as a repository. It was held that the planning permission had not extinguished pre-existing use rights.
281. Viscount Dilhorne (with whom Lord Edmund-Davies agreed) considered that if a planning permission, whether for operational development or for a use, "is of such a character" that its implementation leads to the creation of a new planning unit, then existing use rights attached to a former planning unit are extinguished (pp.598-9). Lord Fraser also expressed the principle by reference to the creation of a new planning unit (p.606). Lord Scarman said that there needed to be a break in the planning history or a new planning unit (pp. 617-618). Similarly, Lord Lane used both terms (p.626).
283. In Jennings Motors the Court of Appeal was asked by the Secretary of State to clarify this terminology. A single storey building was erected on part of a site to replace previous buildings which had been used in connection with the site's mixed use for the repair and servicing of motor vehicles. The local planning authority did not take enforcement action against the erection of the new building, but they did serve an enforcement notice alleging that there had been a material change in the use of that building from a nil use when it was erected to a use for car repairs and servicing. They applied the decision of the Divisional Court in Aston v Secretary of State for the Environment (unreported) 9 April 1973 that a new building has no use rights other than those conferred by a planning permission or by s.75(3) of the TCPA 1990. There was no planning permission for the new building.
285. The Court of Appeal held that the erection of a replacement building covering about 1/17 th of a 0.5 acre site, did not by itself constitute a new planning unit or a new chapter in the planning history of the site so as to extinguish existing use rights there.
287. Oliver LJ (with whom Watkins LJ agreed) held that the principle stated in Aston was too wide. The erection of a new building on part of a site does not always result in the creation of a new planning unit and the extinguishment of any pre-existing use rights on the area occupied by that building. Instead, it is one factor (in some cases a conclusive factor) to be taken into account in deciding whether there has been a change of so radical a nature as to constitute a break in the planning history or a new planning unit, extinguishing pre-existing rights (p.557). On the same subject Oliver LJ said this at p.554D-F:
289. "Where there has been a total change in the physical nature of the premises, it is easy to infer ? indeed, the inference may be irresistible ? that reliance upon any prior user is being abandoned and a new planning history is to begin. Such an inference may equally be drawn ? and may equally be irresistible ? where there is no change or a less radical change in the physical nature of the site but a change in what I may call its planning status which is inconsistent with the preservation of a prior existing use ? for instance its subdivision into smaller units of occupation or its incorporation into a larger single unit.
290. Whether the alteration is of such a character as to produce this result is, I think, in every case, a question of fact and degree." (emphasis added)
291. On the issue of terminology, Lord Denning MR said that the new planning unit approach should be discarded and the effect of a new planning permission assessed in terms of whether a new chapter in the planning history has been opened. The latter would apply where there is a radical change in the nature of the buildings on the site or the uses to which they are put such that it can be looked upon as "a fresh start altogether in the character of the site" (p.551D-E).
293. Oliver LJ recognised that "planning unit" had become a confusing expression. This was because it was sometimes used in a temporal sense to describe a separate and distinct period of planning history relating to a particular area of land and it was also used to distinguish a geographical area of land the history of which has to be studied. Nevertheless, he thought that it remained a "convenient phrase" (p.556 C-D) and that it would be a pity to discard "new planning unit", a term hallowed by long usage, "so long as the concepts which it embraces, (which include a change in the planning history) continue to be clearly appreciated" (p.557G).
295. South Staffordshire District Council v Secretary of State for the Environment (1988) 55 P & CR 258 was decided by a Divisional Court comprising Glidewell LJ and Schiemann J (as he then was). It is unnecessary to delve into the somewhat complicated facts of the case. The Court helpfully clarified at pp.270-3 the different circumstances in which the concepts "planning unit" and "new planning unit" are applied:
297. "The phrase "the planning unit" is a useful piece of shorthand to describe the area of land or part of a building or group of buildings to which a local planning authority should properly have regard when considering whether there has been a "material change in the use of any buildings or other land." Thus it is the appropriate area to consider in order to decide whether land has an established use. The phrase stems from the decision of the Court of Appeal in G. Percy Trentham Ltd. V Gloucestershire County Council, and of this court in Burdle v. Secretary of State for the Environment?
298. There is, however, another piece of shorthand, "the new planning unit," which relates to a different concept. If planning permission is granted for development, the carrying out of the permitted development may be incompatible with the continued use of the land or buildings for the purposes of a previous lawful or established use. It is then said that the carrying out of the permitted development creates a "new planning unit" which has no lawful or established use except the use or uses which the permission itself authorises."
299. "In Jennings Motors Ltd. v. Secretary of State for the Environment in the Court of Appeal, Lord Denning M.R. treated the "new planning unit" and the "new chapter in the planning history" as separate concepts, preferred the latter and, in his trenchant way, said that the former should be discarded. Oliver L.J., with whom Watkins L.J. agreed, was of the view that the two phrases could both apply to the same concept, that the "new chapter in the planning history" was clearer and thus preferable, but that the "new planning unit" was too hallowed by usage to be discarded. In our view the two phrases do relate to the same concept, and it is less confusing to speak of a "new chapter in the planning history." This avoids confusion with the other usage of the term "the planning unit" to which we referred earlier.
300. This leads us to consider when a new chapter in the planning history can be said to begin. If there is a piece of open land which has an established use, and permission is given for the erection of a building on that land, the carrying out of the permitted development opens a new chapter. The established use comes to an end. The building may only be used for the purposes authorised by the permission. This was the situation in Petticoat Lane Rentals.
301. But suppose a landowner occupies a site a part of which has an established use, and is granted planning permission for the erection of a building, to be put to a different use, on the other part of the site. When he erects the building, does he open a new chapter in the sense of depriving himself of the established use of the unbuilt upon part? In Petticoat Lane Rentals Bridge J. (as he then was) posed this question, and reserved the answer to it. These were in essence the facts of Prosser's case, except that there was in the permission for the new building a condition requiring the use for car sales of the other part of the site to cease. This court upheld the enforcement notice alleging breach of that condition."
302. "This brings us to the question which Bridge J. reserved in Petticoat Lane Rentals. In our opinion if land forming part of a larger area in one occupation has an established use, and if planning permission for the erection or enlargement of a building on another part of the same area is granted and the development takes place, this does not necessarily terminate or remove the established use. It only does so if in some way the development which takes place is inconsistent with the established use." (emphasis added)
303. Without intending to set out the law exhaustively, the following points can be gleaned from the case law:
305. (1) A case which is only concerned with an allegation that the use of a building or land has materially changed in breach of planning control generally only needs to be assessed using the "planning unit" concept explained in Burdle;
306. (2) The concepts of a "new planning unit" and a "new chapter in the planning history" are essentially concerned with the effects of implementing a planning permission for development on existing lawful use rights. Such a permission is normally for operational development, but it may relate just to a change of use. As Jennings Motors shows, this issue may also arise where operational development occurs without the grant of planning permission;
307. (3) In situations falling within (2) above, it may be preferable to use the term "a new chapter in the planning history" in order to avoid confusion with the Burdle concept of a planning unit referred to in (1) above. But where this approach is adopted, it will remain necessary to identify the area of land for which a new planning chapter has opened;
308. (4) Where a case falls within (2) above a key consideration will be whether the new development (or a condition of a planning permission) is inconsistent with the subsistence of existing use rights.
309. There is a fundamental difference between the situations in (1) and (2) above. In (1), whether a material change of use has taken place within a planning unit is a threshold question for determining whether planning control is applicable and, if so, whether lawful use rights have been acquired under s.191(2) of the TCPA 1990. In (2), there is no issue as to whether planning control applies or whether a pre-existing use is lawful. Rather the question is whether the implementation of a permission has the effect of extinguishing other planning rights, essentially because of incompatibility. [3] That is an important reason as to why a clear distinction should be maintained between the terms used to describe the concepts so as to avoid confusion.
311. The present case was a relatively straightforward example of situation (1). The enforcement notice alleged a material change of use, the identification of which was not affected by the additional allegation that engineering operations had been carried out. The change of use took place within an existing building. Sometimes when applying the tests in Burdle the planning unit will change because of a change in the area of occupation and/or the distribution of uses within that area. If there has been a material change of use then it will often be the case that reverter to preceding lawful use rights will involve development requiring planning permission (Young in the Court of Appeal). The analysis in the present case could have been conducted using Burdle tests. There was no justification in the present case for invoking the Jennings Motors line of authority or to refer to extinguishment, particularly as this distracted attention from the real focus of the fallback argument, namely s.57(4).
313. Conclusion
314. For these reasons I would grant permission to appeal on grounds 1 and 2(3) only and allow the appeal on those grounds. The enforcement notice appeal should be remitted to be heard and redetermined by a different inspector in accordance with the judgments of this court and on the evidence to be adduced and the submissions to be made at a fresh public inquiry.
316. Lord Justice Dove
317. I agree with both the judgment of Holgate LJ and also that of Lewison LJ below.
319. Lord Justice Lewison
320. I agree; but since the proper ambit of section 57 (4) has led to confusion I add some observations of my own. It is of critical importance to appreciate that section 57 (4) requires a counter-factual hypothesis. That hypothesis is that the development in question has not been carried out. The inspector embarked upon a detailed discussion of the circumstances in which the formation of a new planning unit might extinguish existing use rights. Holgate LJ has set out her reasoning.
322. In my judgment the inspector's analysis simply fails to engage with the statutory hypothesis. The new planning unit was created by the very development which was the subject of the enforcement notice. It is that development which must be ignored in reconstructing the position in the hypothetical world required by section 57 (4).
324. The question for the inspector and the judge was not whether a new planning unit (or new chapter in planning history) had been created in the real world, but what would have been the position if that new planning unit had not been created, and that new chapter had never opened? In failing to engage with the statutory hypothesis I consider that the inspector (and the judge who upheld her analysis) were wrong in law. The inevitable corollary if the unlawful development had not been carried out is that the previous lawful uses in relation to the previous planning units would have prevailed.
326. The answer to the statutory question seems to me to be clear. On the basis of the agreed facts at the public inquiry and those found by the inspector, if the unlawful development had not been carried out, Area B (in conjunction with Area A) would have had a lawful use as a theatre, and Area C would have had a lawful use as workshop/storage. Whether the effect of the unlawful development did or did not create a new planning unit is in my view entirely beside the point, because the statute requires the counter-factual assumption that that development did not take place. For the same reason, the inspector's conclusion that Areas A and B no longer existed as a planning unit is equally beside the point, because that conclusion focuses on the position in the real world, after the carrying out of the unlawful development and not on the position that would have been the case if that unlawful development had not been carried out.
328. It follows, in my judgment, that, on the basis of the agreed facts and those found by the Inspector, no planning permission was required to revert to the use of Area B as a theatre (in conjunction with Area A as the previous planning unit).

Note 1   The copy of the permission provided to the court is poor. The date cannot be read. Although the parties treated this permission as having been granted in 1963, the document states that the application was made on 11 December 1963 and was amended on 20 January 1964. [Back]

Note 2   Under the Town and Country Planning (Use Classes) Order 1987 (SI 1987 No. 764) the D2 Use Class, entitled ?assembly and leisure?, broadly relates to use as a cinema, concert hall, bingo hall, dance hall, swimming bath, etc or Areas for other indoor or outdoor sports or recreations (not involving motorised vehicles or firearms). [Back]

Note 3   Here there is some similarity with the judicial principles for resolving an issue as to whether the implementation of one planning permission for a site may prevent subsequent reliance upon another planning permission for that same site (Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527; Hillside Parks Limited v Snowdonia National Park Authority [2022] 1 WLR 5077). [Back]

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