Hughes v Secretary of State for the Environment Transport and the Regions

Abandonment of a previous planning use is determined objectively. The owner’s intention is relevant, but it is one factor among all the circumstances and is not decisive. The question is whether a reasonable person, informed of the relevant facts, would conclude that the earlier use had been abandoned. Relevant considerations may include the physical condition of the premises, the period of non-use, any other use, and the owner’s intentions. An intention to resume use may be outweighed by prolonged non-use and serious deterioration. Conversely, an intention to resume may carry greater weight where the interruption is temporary and active restoration is being pursued.

The Secretary of State appealed from the decision of Mr Malcolm Spence QC, sitting as a Deputy High Court Judge, who had allowed an application by Ian Carl Hughes and quashed an inspector’s decision refusing planning permission for a replacement dwelling.

The site had formerly been used as a dwelling but had been unoccupied for many years and had deteriorated substantially. The planning authority’s accepted practice required consideration of four matters: the building’s physical condition, the length of residential non-use, any other use, and the owner’s intentions. The central issue was whether the inspector had lawfully concluded that residential use had been abandoned despite evidence that the owners had intended, or hoped, to resume it.

Appeal allowed. The inspector’s decision was restored. The court unanimously rejected the Deputy Judge’s conclusion that an owner’s intention to resume residential use prevented abandonment as a matter of law.

1. Per Lord Justice Kennedy, with whom Lord Justice Thorpe and Lord Justice Mance agreed, abandonment is assessed objectively. The relevant question is whether, having regard to all the circumstances, a reasonable person would conclude that the former use had been abandoned. The court applied the approach in Hartley v Minister of Housing and Local Government [1970] 1 QB 413.
2. The owner’s intentions remain relevant evidence, but they cannot be elevated to a decisive or paramount status. The inspector was entitled to weigh intention against the physical condition of the building, the lengthy period of non-use and any other use. A genuinely held intention may be outweighed by those circumstances.
3. The court relied on and applied the reasoning in Castell-y-Mynach Estate v Secretary of State for Wales [1985] JPL 40, including the principle that the weight of each factor depends on the circumstances of the particular case.
4. The inspector had accepted that the current owner intended to occupy the property and had treated that factor as favouring him. She was nevertheless entitled to conclude that the first two factors strongly indicated abandonment. Her failure to make a more express finding about the former owner’s state of mind did not disclose an error of law, since the relevant evidence had been considered and the objective inference of abandonment was justified.
5. Lord Justice Thorpe described the issue as whether prolonged and gross neglect amounted to abandonment and agreed that intention should neither dominate nor be subordinated artificially. Lord Justice Mance confirmed that the authorities required an objective assessment and considered the inference of abandonment overwhelming on the evidence.

Order: appeal allowed. Section 18 order as to costs in the appeal and below.

• Court of Appeal (Civil Division) — Appeal by the Secretary of State allowed; the inspector’s decision was restored.
• Queen’s Bench Division, Crown Office List — Mr Malcolm Spence QC, sitting as a Deputy High Court Judge, allowed Mr Hughes’s application and quashed the inspector’s decision on 14 April 1999.
• Inspector’s decision — Planning appeal dismissed and permission for the replacement dwelling refused on 23 October 1998.